Fundamentals of Caribbean Constitutional Law 9780414037205

Citation preview

'r .,u

-

• ■T’, ,

. •■ -

’« '

-

.j

'• •".c.T.Cr - -

.

FUNDAMENTALS OF CARIBBEAN CONSTITUTIONAL LAW Tracy Robinson, Arif Bulkan, Adrian Saunders

Fundamentals of Caribbean Constitutional Law

Fundamentals of Caribbean Constitutional Law by Tracy Robinson Senior Lecturer, Faculty of Law University of the West Indies, Mona Arif Bulkan Lecturer, Faculty of Law University of the West Indies, St. Augustine Adrian Saunders Judge of the Caribbean Court of Justice

P ublished in 2015 by T h o m so n R euters (Professional) U K L im ited tra d in g as Sw eet & M axw ell, F ria rs H ouse, 160 B lackfriars R o ad , L o n d o n , SE1 8 E Z (R egistered in E n g la n d & Wales, C o m p an y N o 1679046. R egistered Office a n d address fo r service: 2nd F loor, 1 M a rk Square, L e o n a rd S treet, L o n d o n E C 2 A 4E G ) F o r fu rth e r in fo rm a tio n o n o u r p ro d u cts a n d services, visit www. sw eetandm axw ell.co. uk Typeset by Servis Film setting Ltd, Stockport, Cheshire Printed in Great Britain by Ashford Colour Press, Gosport, H ants N o n a tu ra l forests w ere destroyed to m ake this pro d u ct; only farm ed tim b er w as used a n d rep lan ted . A C IP catalogue reco rd for this b o o k is available fro m the B ritish L ibrary. ISB N : 978-0-414-03720-5 T h o m so n R euters a n d the T h o m so n R euters logo are tra d e m a rk s o f T h o m so n Reuters. Sw eet & M axw ell ® is a registered tra d e m a rk o f T h o m so n R euters (Professional) U K L im ited. C row n c o p y rig h t m aterial is rep ro d u c e d w ith the perm ission o f th e C o n tro ller o f H M S O a n d the Q ueen’s P rin te r for S cotland. A ll rights reserved. N o p a rt o f this p u b licatio n m ay be rep ro d u ced o r tra n sm itte d in any fo rm o r by any m eans, o r sto red in any retrieval system o f any natu re w ith o u t p rio r w ritten p erm ission, except for p e rm itte d fair dealing u n d e r the C o p yright, D esigns a n d P a ten ts A c t 1988, o r in acco rd an ce w ith the term s o f a licence issued by th e C o p y rig h t L icensing A gency in respect o f p h o to co p y in g a n d /o r rep ro g rap h ic rep ro d u ctio n . A p p lica tio n for perm ission for o th e r use o f cop y rig h t m aterial including perm issio n to reproduce ex tracts in o th e r p u blished w orks shall be m ad e to the publishers. F u ll acknow ledgem ent o f a u th o r, p u blisher a n d source m u st be given. © 2 0 1 5 T h o m so n R eu ters

To three late masters of Caribbean constitutional law: Ralph Carnegie Margaret Demerieux and Simeon McIntosh

PREFACE

This book explores the different systems of constitutional governance that exist in the independent states and overseas territories in the Anglophone Caribbean, and examines the core principles associated with constitutional law in this region. In the first instance, the book is meant to support the teaching of constitu­ tional law, which is a compulsory subject for those who pursue undergradu­ ate training in law in the Anglophone Caribbean. In the discussions at the end of the 1960s around the content of a Caribbean Bachelor of Law (LLB) degree as part of a new Caribbean system of legal education, the eminent Sir Hugh Wooding and Sir Roy Marshall recommended that students have a “stimulating” first year that included “constitutional law and government with special reference to the development from crown colonies to independ­ ent states”. But it is also important to recognise that decolonisation was neither wholly unidirectional nor total in the Anglophone Caribbean, and was at times reversed or halted. Fundamentals o f Caribbean Constitutional Law is additionally meant to serve the legal profession and judiciary, who are also interested in a book that organises and makes sense of the jurisprudence that has developed over decades in an evolving subject. Hopeftilly the book will be of value to interdisciplinary students and scholars as well. Over the years, Caribbean constitutional law has evolved. When Caribbean constitutional law was first taught as a subject in the LLB degree (University of the West Indies (UWI)) by Professor Ralph Carnegie, he presented the “legal revolution” that took place with the devolution of imperial power to new Caribbean states as the mystery for Caribbean constitutional law. He asked his students: if Caribbean independence constitutions are supreme, how did this happen if the UK Parliament was sovereign and that power could not be abdicated? That question receded as judicial review of legisla­ tion became firmly established, including in the non-independent territories. It was established as early as 1964 in Lilleyman, a case of judicial review under the colonial constitution of British Guiana, that “[a] law enacted by the legislature cannot transgress or violate the provisions of the fundamental law.” ((1964) 13 W.I.R. 224 at 242). Each chapter in Fundamentals begins with a relatively brief definition section Jhat sets the tone for the chapter. This section offers, in a summary fashion, a way of making sense of contradictory and inconsistent approaches to that topic. Although this section is quite brief, it is fundamental to the logic of the book, which is to help systematise the law. The remainder of each chapter discusses key issues in detail, but the first few pages are among the most important in every chapter. As a practical tool to assist readers—often legal practitioners—who wish to identify the law in a given jurisdiction or to compare jurisdictions, the book generally footnotes the applicable constitu­ tional provisions in the 18 states and territories. The first two chapters provide the foundation for the book, and describe

viii

PREFACE

the history of Anglophone Caribbean constitutions and the different systems of governance that they establish. To what is mostly viewed as a post-1962 subject, the book traces its longer historical roots in the modes of govern­ ing and constitutional tragedies that took place in the five preceding cen­ turies. Most of the remaining chapters address the core ideas associated with Caribbean constitutions which are usually at the heart of teaching in this area—supremacy, separation of powers, the rule of law, judicial review, judicial independence and fundamental rights. These well-accepted doctrines at times have hazy boundaries, and the book aims to define what these prin­ ciples mean and to consider their effect. A chapter is devoted to clarifying the heterogeneous practices of constitutional interpretation that have developed over the last five decades. At the dawn of the twenty-first century, Professor Simeon McIntosh planted a new primordial question for Caribbean constitu­ tional law. He not only questioned the legitimacy of independence constitu­ tions as not being “our own”, but insisted that constitutional reform become the primary project related to Caribbean constitutions. We devote our last chapter to efforts at constitutional change, particularly after 2000. The book also tackles contemporary questions in constitutional law today. One of these is the relevance and effect of implied constitutional principles and whether amendments to the constitutions can themselves be uncon­ stitutional. Another is the role of international law in constitutional law interpretation. The book addresses present-day constitutional law concerns particular to the Caribbean, such as the relationship between Caribbean constitutions and regional institutions. For example, the book considers how the supremacy of national constitutions impacts the Caribbean Community (CARICOM). In addition, the book recognises that not just regional bodies but international development agencies, organisations and bodies all have an imprint on Caribbean constitutional law today, especially constitutional change. Although the book is the product of our joint efforts, we collectively decided that Bulkan and Robinson would write sections that analysed deci­ sions of the Caribbean Court of Justice (CCJ) and other courts in which Saunders, the third author, participated. Likewise, Bulkan and Robinson examined cases which could potentially be heard by the CCJ on appeal. Although it is not uncommon for judges to author texts and make extraju­ dicial observations, it is still important to point out that what is said in the book does not amount to a predetermination by Saunders of any matter that comes before him as a judge, nor does the content of the book fetter him in his judicial capacity. In Cordell v Second Clanfield Properties Ltd [1969] 2 Ch. 9 at 16, the eminent author on real property, Megarry J, distinguished his academic writings from his judicial functions noting that the “process of authorship is entirely different from that of judicial decision” and that the words of an author who is a judge should “have the same value as words written by any other reputable author, neither more nor less”. The same is true of this book. Many people helped and supported us in the preparation of this manu­ script and from its earliest stage of gestation, and we wish to sincerely thank them. Our conversations over many years with the accomplished public lawyer Douglas Mendes SC about this project and collaborative teaching with him in the UWI LLB degree have been instrumental to us. We also

PREFACE

ix

wish to thank Patrick Robinson and Barbara Vargas who reviewed drafts of a number of the chapters. We benefited greatly from discussions with other experts and members of the legal profession in thinking through constitu­ tional law issues in specific states and territories: His Excellency Dr. Nicholas Liverpool (former President of Dominica and former Dean of the Faculty of Law at UWI), Professor Harold Lutchman, Mr Justice David Batts, Don Mitchell QC and Kerith Kentish. Godfrey Smith SC and Lesley Mendez generously assisted us in finding Belizean constitutional reforms. The staff at the Law Branch Library, UWI Mona and the CCJ Library also provided inestimable assistance in locating and verifying sources in the book. Saunders especially wishes to thank law librarians Sheryl Washington-Vialva and LeShaun Salandy of the CCJ Library. Robinson wishes to thank law librar­ ian Myraa Douglas and librarian Rochelle Davis of the Law Branch Library. Additionally, we express our gratitude to Alicia Dixon, Anna-Kay Brown, Lanasia Nicholas and Tyrone Bailey, who provided research assistance in the preparation of this manuscript. Robinson also expresses her deep apprecia­ tion to colleague-friends Janeille Matthews and Suzanne Goldson for their invaluable support and encouragement. Finally, we wish to thank the team at Thomson Reuters who have guided us through the publication process, and we especially wish to express our appreciation to Lisa Reiten of Carswell, another Thomson Reuters business, who strongly supported the expansion of publications related to Caribbean law and shepherded us through the early phases of the preparation of this manuscript. This book is up to date to November 15, 2014.

CONTENTS

Dedication Preface Table o f Abbreviations Table o f Cases Table o f Legislation Table o f International Agreements and Conventions

v vii jcv

xvii xxxiii lv

Chapter 1—Foundations

1. 2. 3. 4.

The Anglophone Caribbean 1-001 Caribbean Constitutions and Constitutional Law 1-002 Pre-Twentieth Century Constitutional Development 1-013 Decolonisation and Constitutional Change in the Twentieth Century 1-025 5. Elements of Modem Caribbean Constitutionalism 1-040 6. The Identity Problem: Are Caribbean Constitutions “our own”? 1-049

Chapter 2—Constitutional Structures of Government

1. 2. 3. 4. 5. 6. 7.

Multiple Forms of Governance The Shadow of the UK Constitution Prime Ministerial Government Caribbean Senates Shared Governance in the Overseas Territories Hybrid Presidential System in Guyana Local Government, Decentralisation and Federation

2-001 2-002 2-014 2-028 2-030 2-034 2-038

Chapter 3—Interpretation

1. 2. 3. 4. 5.

Multiple Approaches to Interpretation A Shared Approach to Interpretation The Role of History and Tradition Liberal Approaches Judicial Restraint

3-001 3-002 3-003 3-017 3 -029

Chapter 4—Supremacy of the Constitution

1. 2. 3. 4. 5. 6.

The Doctrine of Supremacy and Supreme Law Clauses Elements of Constitutional Supremacy The Overseas Territories The Machinery for Changing the Constitution Parliament as Supreme and Yet Not Supreme The Consequences of Inconsistency with the Constitutions

4-001 4-002 4-006 4-007 4-019 4-024

CONTENTS

x ii

7. The Caribbean Community and the Supremacy of National Constitutions

4-028

Chapter 5—Judicial Review

1. 2. 3. 4. 5. 6. 7. 8. 9.

Elements of Judicial Review Basis of Judicial Review The Object of Judicial Review Standing to Bring Claims Ex Ante Judicial Review Getting Redress No Judicial Review Clauses Political Questions Strong-Form Judicial Review, in Principle

5 001 5-004 5-005 5 009 5-012 5-014 5-017 5-027 5 036

Chapter 6—The Rule of Law

1. 2. 3. 4. 5. 6. 7.

Elements of the Rule of Law “Wicked Laws” and the Rule of Law: The Dread Act of Dominica 1974 The Rule of Law Expressed and Implied in the Constitutional Texts Core Principles Associated with the Rule of Law Does the Rule of Law Have Direct Force as an Unwritten Constitutional Rule? The Rule of Law in Caribbean Crises The Rule of Law, the CCJ and the Caribbean Community

6-001 6 004 6- 005 6-012 6-027 6 033 6 035

Chapter 7—The Distribution and Separation of Governmental Powers

1. 2. 3. 4. 5. 6. 7. 8.

The Main Functions and Branches of Government Background to the Doctrine of Separation of Powers Definition of Doctrine of Separation of Powers The Doctrine Expressed and Implied in the Constitutional Texts Control of Legislative Power Control of Judicial Power Control of Executive Power The Future of Hinds

7 001 7- 002 7 003 7 007 7-013 7 017 7 029 7-034

Chapter 8—Judicial Independence

1. Judicial Power 2. Elements of Judicial Independence 3. Judicial Independence Expressed and Implied in the Constitutional Texts 4. Judicial Independence in Small Developing Jurisdictions 5. Appointment and Promotion of Judges 6. Security of Tenure 7. Financial Security and Security of Terms and Conditions

8-001 8-002 8-008 8 015 8 -023 8-044 8-057

CONTENTS

8. 9. 10.

Administrative Independence Judicial Independence and Judicial Accountability The Magistracy as Part of the Judiciary

x iii

8-061 8-065 8-067

Chapter 9—Fundamental Rights and Freedoms

1. 2. 3. 4. 5.

Background The Functions of the Bill of Rights Caribbean Bills of Rights Limitations on the Rights Enforcing Rights

9-001 9-002 9-005 9-015 9-033

Chapter 10—Constitutional Change and Development

1. 2. 3. 4. 5. 6. 7. 8. Index

Modem Constitutional Reform Constitutional Stability in the Independent States New Constitutions in the Overseas Territories Questioning the Westminster Model Negotiating Plural Societies Reforming the Judiciary Human Rights and Balancing State Power Globalisation and International Development

10-001 10-004 10-006 10-007 10-015 10-016 10-017 10-019 501

t a b l e o f a b b r e v ia t io n s

Ang A&B Aus Bah Bds Bze Ber BG Br Hond BVI Can CARICOM CCJ Cl Cey Const CC CEDAW Cook Is CA CA Civ Div Dom ECSC Eng ECHR ECtHR ECJ Exch FC Gib GC Gren Guy HC HK HL Ind ICCPR Jam Ken KB Mai

Anguilla Antigua and Barbuda Australia The Bahamas Barbados Belize Bermuda British Guiana British Honduras British Virgin Islands Canada Caribbean Community Caribbean Court of Justice Cayman Islands Ceylon Constitution Constitutional Court Convention on the Elimination of All Forms of Discrimination against Women Cook Islands Court of Appeal Court of Appeal Civil Division (United Kingdom) Dominica Eastern Caribbean Supreme Court England European Convention on Human Rights European Court of Human Rights European Court of Justice Exchequer Chamber, Court of the (United Kingdom) Full Court Gibraltar Grand Court Grenada Guyana High Court Hong Kong House of Lords (United Kingdom) India International Covenant on Civil and Political Rights Jamaica Kenya King’s Bench, Court of the (United Kingdom) Malaysia

xvi

Maur Mont Nam Nfld Nig OAS OECS PC QB QBD Rhod RTC Scot Sey SL Sol Is SA S Rhod SKN SKNA SLU SVG SC TT TCI Ug UDHR WIAS UK US Zimb

TABLE OF ABBREVIATIONS

Mauritius Montserrat Namibia Newfoundland Nigeria Organisation of American States Organisation of Eastern Caribbean States Privy Council Queen’s Bench, Court of the (United Kingdom) Queen’s Bench Division (United Kingdom) Rhodesia Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy Scotland Seychelles Sierra Leone Solomon Islands South Africa Southern Rhodesia St. Kitts-Nevis St. Kitts-Nevis-Anguilla St. Lucia St. Vincent and the Grenadines Supreme Court Trinidad and Tobago Turks and Caicos Islands Uganda Universal Declaration of Human Rights West Indies Associated States United Kingdom United States Zimbabwe

table of c a ses

CARIBBEAN STA TES AND T E R R IT O R IE S Anguilla AG v Lake AI 2005 CA 2 (C A R ILA W ) A pril 4, 2005 (CA A n g ) ..................... 5-028, 5- 029 Benjamin v M inister of Inform ation and Broadcasting A I 1998 H C 3 (CA RILA W ) January 7,1998 (H C Ang); affirmed [2001] U K PC 8 ; (2001) 58 W .I.R . 171; [2001] 1 W .L.R . 1040 (PC A n g )................................... 3- 019, 3-021, 3 -032, 3 033, 4-006, 5 007, 5-010, 9-019 Hughes v Rogers AI 2000 H C 1 (CA R ILA W ) January 12, 2000 (H C Ang) ...2 012, 7-013 Lake v A G AI 2004 H C 8 (CA R ILA W ) April 5, 2004 (H C A n g )..................................9 023 Richardson v A G A I 2006 H C 6 (CA R ILA W ) April 27, 2006 (H C A ng) 2-007,4-006, 4-021, 5-004, 5-019, 5-020, 8 067 Antigua and Barbuda A G v A ntigua Times (1975) 21 W .I.R . 560; [1976] A.C. 16 (PC A & B )........... 3 030, 5-009, 9 019, 9 022 AG v Barbuda Council A G 2002 CA 3 (CA R ILA W ) M ay 27, 2001 (CA A & B ) 2 041 AG v G oodw in (1999) 60 W .I.R . 249; [2001] 2 L.R .C . 1 (CA A& B)................2 002, 3 003, 3-007, 3-022, 9 007 A G v Lake (1998) 53 W .I.R . 145; [1998] 4 L .R .C . 348 (PC A&B)...................................2-002 Cabinet o f Antigua and B arbuda v H M B H oldings Ltd A G 2003 CA 3 (CA RILA W ) January 28,2003 (CA A & B )............................................................................................... 8-004 Charles v A G U nreported M arch 2, 2011 (H C A & B)........................................................ 5-015 De Freitas v Perm anent Secretary o f M inistry of Agriculture, Fisheries, Lands and Housing (1998) 53 W .I.R . 131; [1999] 1 A.C. 69; [1998] 3 W .L.R. 675 (PC A & B ).................................................................................... 3-034, 6-015, 9-020, 9-023, 9-025 Farrell v AG (1979) 27 W .I.R . 377 (CA A&B)...................................... 3-011, 7-018, 8 009 Hector v A G (1990) 37 W .I.R . 216; [1990] 2 A.C. 312 (PC A & B )........ 3 021, 3-034, 9-019 Humphreys v A G [2008] U K P C 61 (PC A & B ).................................................................. 6-019 Joseph v AG (1980) 27 W .I.R . 394 (CA A&B).....................................................................3-007 Linton v A G A G 2009 H C 23 (CA R ILA W ) June 29,2009 (H C A & B )....................... 4-029 Observer Publications L td v M atthew [2001] U K PC 11; (2001) 58 W .I.R . 188 (PC A & B ).......................................................... 3 034, 5-007, 6-015, 6-016, 9-022, 9-023, 9 035 Q uinn-Lcandro v Jonas (2010) 78 W .I.R . 216 (H C A & B ) 3-008, 5 031, 9 007 Spencer v A G A G 1997 H C 46 (CA R ILA W ) N ovem ber 21,1997 (H C A&B)5 011, 5 012 Spencer v A G A G 1998 CA 3 (CA RILA W ) April 8,1998 (CA A & B)...........................5 011 Spencer v Smith U nreported June 23, 2003 (H C A & B )....................................... 2-013, 5 031 Thom as \ H arris A G 2004 H C 18 (C A R ILA W ) M ay 12, 2004 (H C A & B )................. 5 011 Welch v AG [2013] U K PC 21 (PC A & B )..............................................................................3-007 Bahamas AG v Ryan [1980] A.C. 718 (PC B ah).................................................................................. 6-015 Bahamas Bar Council v Christie BS 2007 SC 89 (CA R ILA W ) July 13, 2007 (SC B a h )......................................................................................................................................... 8 058 Bahamas M ethodist Church v Sym onette (2000) 59 W .I.R . 1; [2000] 5 L .R .C . 196 (PC B a h ).........................2 009, 2-012, 3-031, 4 -0 0 5 ,4 -0 1 9 ,4 -0 2 0 , 4-021, 5- 002, 5 012, 6-0 3 2 ,7 0 1 3 ,7 015,9 016

x v iii

TABLE OF CASES

Baham ian O utdoor A dventurer T ours L td v R BS 2000 SC 13 (C A R ILA W ) A pril 6 , 2000 (SC B a h ).................................................................................................................... 8-060 Bethel v D ouglas (1995) 46 W .I.R . 15; [1995] 3 A ll E.R . 801 (PC B ah).........................2 005 Bowe v R [2006] U K P C 10; (2006) 6 8 W .I.R . 10; [2006] 1 W .L.R . 1623 (PC B a h )............................................................2-006, 3-010, 3-015, 3-020, 4-026, 5-023, 9-022 Braynen v A G BS 2006 SC 47 (C A R ILA W ) June 12,2006 (SC B ah)............................ 8 021 Christie v Ingraham (2008) 74 W .I.R . 1 (SC B ah).......................2-029, 3-004, 3-008, 3 011, 3 012,5 033, 6 021 C larke v AG (1992) 45 W .I.R . 1 (SC B a h )........................................................................... 9 036 Com m issioner o f Police v Davis (1993) 43 W .I.R . 1; [1993] 4 All E.R . 476 (PC B a h ).......................................................................................................................................... 7 018 C O P v Davis (1993) 43 W .I.R . 1; [1994] 1 A .C. 283; [1993] 4 All E .R . 476 (PC B a h )................................................................................................................................2 002,8-001 Higgs v M inister o f N ational Security (1999) 55 W .I.R . 10 (PC B a h )................ 2 005, 7 016 Ingraham v M cEw an (2002) 65 W .I.R . 1 (CA B a h )................................................ 3 0 0 8 ,9 007 K v M inister o f Foreign Affairs BS 2007 SC 28 (C A R ILA W ) M arch 11, 2007 (SC B a h ).......................................................................................................................................... 1 045 Knowles v Supt o f Fox Hill Prison [2005] U K P C 17; (2005) 6 6 W .I.R. 1 (PC B ah)... 5 020 Luc v A G U nreported February 21,2012 (CA B ah)......................................................... 5 015 M erson v C artw right [2005] U K P C 38; (2005) 67 W .I.R . 17 (PC B a h ) 5 -0 1 5 ,6 022, 9-035 New bold v C O P [2014] U K P C 12; (2014) 84 W .I.R . 8 ; [2014] 4 L .R .C . 684 (PC B a h )............................................................................................................................. 6-028, 9-009 N eym our v A G BS 2006 SC B a h 43 (CA R ILA W ) M ay 18, 2006 (SC B a h )....8-018, 8 057 Pinder v R [2002] U K P C 46; (2005) 61 W .I.R . 13; [2003] 1 A .C. 620 (PC B a h ).................................. 1-005, 2 002, 3-003, 3-007, 3-020, 3 022, 5-022, 7 026, 9 002 R v Jones (2007) 72 W .I.R . 1 (SC B a h )............................ 8 002, 8 005, 8 010, 8 012, 8 058 R oberts v A G BS 2000 SC 62 (CA R ILA W ) Decem ber 18, 2000 (CA B a h ).................3 003 Roberts v M inister o f Foreign Affairs [2007] U K P C 56; (2007) 71 W .I.R . 1 (PC B a h ).......................................................................................................................................... 2 005 R oberts v M inister o f Foreign Affairs BS 2005 SC 22 (CA R ILA W ) M arch 10, 2005 (SC B a h ).................................................................................................................................. 3 021 R yan (No.2), R e BS 1980 CA 31 (C A R ILA W ) N ovem ber 19,1980 (C A B ah) 3- 011 Smith v COP (1984) 50 W .I.R . 1 (SC B a h ) ..........................................................................9 021 T akitota v A G [2009] U K P C 11; [2009] 4 L .R .C . 807 (PC Bah)......................................9 037 Whitfield v A G (1989) 44 W .I.R . 1 (SC B a h )........................................... 1-003,1- 005, 3 005, 3 017, 8 046 Barbados A G v Barker (1984) 38 W .I.R . 48 (H C B d s )....................................................................... 7 014 A G v G ibson U nreported Decem ber 15, 2009 (CA B d s ).................................................. 7-030 A G v Joseph [2006] C C J 3 (AJ); (2006) 69 W .I.R . 104; [2007] 4 L.R.C. 199 (C C J Bds)..................... 1-006, 2-003, 2-004, 2-005, 3 001, 3 002, 3-007, 3 008, 3-013, 3 016, 4-029, 5-015, 5-019, 5-020, 6-002, 6-006, 6-012, 6-019, 6-020, 6-021, 6 -0 2 3 ,6 -0 2 4 ,6 -0 2 6 ,6 -0 2 8 ,6 -0 3 1 , 6-032,6-036, 7 016, 8-012, 9-004, 9-009, 9 026, 9 035 Boyce v R [2004] U K P C 32; (2004) 64 W .I.R . 37; [2005] 1 A.C. 400 (PC B ds) 3-001, 3 014, 3 015, 3 -0 1 8 ,3 -0 2 1 ,3 -0 2 2 ,3 023, 3-026, 3 -0 2 8 ,4 -0 0 2 ,4 -0 0 5 , 5 023, 5 024, 6-010, 6-019, 6-029, 6-033, 7-038, 8 028, 9 010 CO W illiams C onstruction L td v Blackm an (1994) 45 W .I.R . 94; [1995] 1 W .L.R . 102 (PC B d s)..................................................................................................2 003, 2 004, 3-026 Demerieux v A G (1982) 1 C.C .C.B .R. 10 (H C Bds)............................................................9-034 G atherer v Gom ez (1992) 41 W .I.R . 6 8 (PC B d s)............................................................... 7-014 G ibson v A G [2010] C C J 3; (2010) 76 W .I.R . 137 (C C J Bds)....5 015, 6-023, 7 030, 9 003

TABLE OF CASES

x ix

Grazette v A G BB 2007 H C 2 (CA R ILA W ) January 30, 2007 (CA Bds)...................... 3-021 H inds v A G [2001] U K P C 56; (2002) 59 W .I.R . 75; [2002] 1 A.C. 854; [2002] 4 L.R.C. 287 (PC B d s).............................................................................................. 9-003,9-036 Hinds v A G (No.2) (1999) 59 W .I.R . 75; [2002] 1 A.C. 854 (PC B d s).............3-021, 3-032, 3-033 H obbs & M itchell v R (1992) 46 W .I.R . 42 (CA B ds)...........................................3-021, 3-025 King v A G (1992) 44 W .I.R . 52 (H C B d s)............................................................................3-032 King v A G (1993) 45 W .I.R . 50; [1994] 1 W .L.R . 1560 (PC B ds) 5-028, 8-058 R v Lewis [2007] C C J 3 (AJ); (2007) 70 W .I.R . 75 (CCJ B ds).........................................3-021 Reyes v R [2004] U K P C 32; (2004) 64 W .I.R . 37; [2005] 1 A.C. 400 (PC B ds) 3- 010 Scantlebury v A G (2009) 76 W .I.R . 8 6 (CA Bds)................................................................9-036 Scantlebury v R (2005) 6 8 W .I.R . 8 8 (CA Bds).........................................2-002, 3-007,7-026 Smithfield v A G (1992) 40 W .I.R . 61 (PC B ds).......................................... .'....................... 9-036 Weel v A G (2011) 78 W .I.R . 22 (CA Bds)......................................9-021, 9-023, 9-024, 9-028 Belize A G for British H onduras v Bristowe (1880) 6 L.R . A pp. Cas. 143 (PC Br H ond) .... 1-014 Bar Association o f Belize v A G U nreported April 19,2013 (SC B ze)............. 4-023, 8-013, 8-037, 8-045,10-002 BCB Holdings L td v A G [2013] CC J 5 (AJ); (2013) 82 W .I.R . 167 (CCJ B ze) 2-003, 2-004, 2 -0 0 5 ,2 -0 1 8 ,4 -0 2 0 , 5-035, 7-002,7-003, 7-010, 7-014, 7-016, 7-034 Belize Bank L td v A G [2011] U K PC 36; (2011) 80 W .I.R . 97 (PC B ze)........................ 3-024 Bowen v A G BZ 2009 SC 2 (CA R ILA W ) February 13, 2009 (SC B ze).......... 2-008, 4-022, 4-023, 6-005,6-006, 6-029, 7-004, 7-034, 9-004, 9-009,10-002 Boyce v A G BZ 2010 SC 53 (C A R ILA W ) July 30, 2010 (SC Bze)..................................9-023 British C aribbean B ank L td v A G BZ 2010 SC 53 (CA R ILA W ) July 30, 2010 (SC Bze)........................................................................................................................................... 9-023 British C aribbean Bank L td v A G BZ 2012 SC 26 (CA R ILA W ) June 11, 2012 (SC Bze)........................................................................................................................... 4 -022,10-002 Cal v A G (2007) 71 W .I.R . 110 (SC B ze)....................... 1-005,1-047, 3-004, 3-019, 3-026, 5-030, 9-007 C ard v A G BZ 1983 SC 15 (CARILAW ); 1 B.Z.L.R. 270 (SC B ze).............................. 6-021 F o rt Street Tourism Village v A G (2008) 74 W .I.R . 133 (SC Bze); on appeal BZ 2008 CA 26 (CA R ILA W ) October 17, 2008 (CA Bze).............................................. 5-006,9-007 Fuller v A G [2011] U K P C 23; (2011) 79 W .I.R . 173; [2012] 2 L.R .C . 110 (PC Bze)................................................................................................................. 2-002, 3-007, 3-024 Jan-M oham m ed v A G U nreported February 2,1999 (H C B ze)..................................... 8-030 M arin v A G [2011] C C J 9 (AJ); (2011) 78 W .I.R . 51 (CCJ Bze)...................................... 3-007 M aya Leaders Alliance v A G (2010) 77 W .I.R . 108 (SC Bze); affirmed on appeal A G v M aya Leaders Alliance U nreported July 25,2013 (CA B ze)..................... 1-047, 3-004, 3-026, 5-010 M eerabux v A G [2005] U K P C 12; (2005) 6 6 W .I.R . 113; [2005] 2 A.C. 513 (PC Bze).................................................................................................... 3-003, 8-010, 8-047, 8-053 M usa v A G BZ 1998 SC 6 (CA R ILA W ) January 22,1998 (SC B ze)............... 2-012,2-013 Orozco v A G U nreported A pril 27,2012 (SC B ze)............................................................ 5-010 Prime M inister o f Belize v Velios [2010] U K P C 7; (2010) 77 W .I.R . 87 (PC Bze)..............................................................................................................................4 -014,6-029 Reyes v R [2002] U K P C 11; (2002) 60 W .I.R . 42; [2002] 2 A.C. 235 (PC B ze) 3-001, 3 -0 1 7 ,3 -0 2 1 ,3 -0 2 4 ,3 -0 2 5 ,4 -0 2 4 ,4 -0 2 6 , 9-008 San Jose Farm ers’ Co-operative Society L td v A G (1991) 43 W .I.R . 63 (CA B ze).............................................................................................................................. 3-007,4-026 W ade v Roches BZ 2005 C A 5 (CA R ILA W ) M arch 9,2005 (CA Bze).......... 4-003, 5-006

XX

TABLE OF CASES

Zuniga v A G o f Belize (2012) 81 W .I.R . 87; [2013] 3 L .R .C . 426 (CA Bze); reversed [2014] C C J 2; (2014) 84 W .I.R . 101 (C C J B ze)............2-002, 3-007, 4-027, 7-002, 7-010, 7-017, 7-019, 7-020, 7-021, 7 0 2 4 ,7 -0 2 5 ,7 -0 2 7 Z uniga v A G BZ 2012 C A 14 (C A R IL A W ) A ugust 3, 2012 (CA Bze) 7 025, 7 027 Bermuda A ttride-Sterling v A G [1995] 1 L.R .C . 234 (CA B e r).................................................. 4-006 CO P v Berm uda B roadcasting Co [2008] U K P C 5; (2008) 72 W .I.R . 125; [2008] 4 L.R .C . 537 (PC B er).............................................................................................................. 3 030 Davey and Davey v M inister o f H om e Affairs [1986] Bda L.R . 52 (H C B er) 9 007 G rape Bay Ltd v A G (1999) 57 W .I.R . 62; [2000] 1 W .L.R . 574; [2000] 1 L.R .C . 167 (PC B er)..............................................................................4-006, 5-028, 5-029, 6-028, 9-009 M inister o f H om e Affairs v Fisher (1979) 44 W .I.R . 107; [1980] A.C. 319; [1979] 2 W .L.R . 889; [1979] 3 All E.R . 21 (PC B er)............. 1-001,1 045, 3-002, 3-017, 3-018, 3-022, 3-024, 3 032, 9 -0 0 1 ,9 -0 0 9 R v R obinson (2009) 74 W .I.R . 243 (CA Ber)..................................................................... 3 024 R v Selassie [2013] U K P C 29; (2013) 83 W .I.R . 94 (PC B er)............................................ 3-024 R ichardson v R aynor (2011) 78 W .I.R . 159 (SC B e r)... 3-007, 3-024, 4-006, 9-022, 9 023 British Virgin Islands Hodge v H erm an VG 1991 C A 2 (C A R ILA W ) January 14, 1991 (CA B V I) R oach v A G VG 2002 H C 2 (C A R ILA W ) January 31, 2002 (H C B V I)

2 007, 5 004, 5 020 4 006

Cayman Islands AI Sabah v G rupo T orras SA and A nother [2005] U K P C 1; (2005) 65 W .I.R. 61 (PC C l).............................................................................................................................................. 1 017 Hew itt v A G U nreported A ugust 9, 2013 (G C C l ) ............................................................ 5 031 Levers J, R e [2010] U K P C 24; (2010) 79 W .I.R . 234; [2010] 5 L.R .C. 827 (PC C l)........................................................................................................8-017, 8-047, 8-049, 8 052 R andall v R [2002] U K P C 19 (PC C l ) ................................................................................... 5-015 W atson-M organ v G ra n t K Y 1990 CA 2 (CA R ILA W ) A ugust 1, 1990 (CA C l ) 1-045 Dominica A braham v D arroux D M 2010 H C 12 (C A R ILA W ) A ugust 28, 2010 (H C D om )........................................................................................................................... 2 -0 1 3 ,5 031 Cable & Wireless (Dom inica) L td v M arpin (2000) 57 W .I.R . 141 (PC D o m ) 3-032, 3 033,5-029, 9 -0 1 9 ,9 020, 9-022 C oconut Beach Residence Ltd v M inister for A griculture D M 2001 H C 8 (CA R ILA W ) July 31, 2001 (H C D o m )............................................................................. 5-010 Constituency Boundaries Com m ission v Baron (1999) 58 W .I.R . 153 (CA D o m ) 3 008 Doyle v Falconer (1866) 15 W .R . 366; (1866) L.R . 1 P.C. 328; 16 E.R . 293; (1866) 4 M oo. P.C.N.S. 203; (1866) 36 L.J.P.C . 33 (PC D o m )......................................1-018, 2-012 Em anuel v A G D M 1991 H C 8 (C A R IL A W ) July 1991 (H C D o m )............... 8-054, 8 055 G reen v Saint Jean D M 2013 C A 1 (C A R IL A W ) M arch 11, 2013 (CA D o m ) 5-031 J A staphan and Co (1970) L td v The C om ptroller o f Custom s (1996) 54 W .I.R . 153; [1999] 2 L.R .C . 569 (CA D o m ) ..................................2-018, 4-029, 7-003, 7-004, 7-014, 7-034, 7- 035 J A staphan and Co (1970) L td v The C om ptroller o f Custom s (1997) 55 W .I.R . 172 (C A D o m )................................................................................................................................ 2 006 James v Speaker o f the H ouse o f Assembly o f D om inica D M 2004 H C 6 (C A R ILA W ) O ctober 22, 2004, (H C D o m )...............................................................................................4-021 John v D P P (1985) 32 W .I.R . 230 (PC D o m ).......................................................................3-007 Joseph v Skerritt U nreported January 19, 2012 (H C D o m ).............................................5 031

TABLE OF CASES

xxi

Lestrade v Speaker o f the H ouse D M 1984 H C 6 (CA RILA W ) February 27, 1984 (HC D om )...............................................................................................................................5 Oil Prime M inister v John (2014) 83 W .I.R . 370 (CA D o m )........................ 2 016, 5 020, 5 032 Sabaroche v Speaker o f the H ouse D M 1999 CA 4 (CARILAW ) M ay 25,1999 (CA Dom ).........................................................................................................................................2-012 Sabaroche v Speaker o f the H ouse o f Assembly (1999) 60 W .I.R . 235; (1999) 3 L.R.C. 584 (CA D om )..............................................................................................6-032, 7 -013 Grenada AG v A ban (1995) 48 W .I.R . 111 (CA G ren)..........................................................9-036, 9-037 AG v C oard (2005) 6 8 W .I.R . 289 (CA G re n )................................................................... 3 020 AG v G renada Bar Association G D 2000 CA 2 (CA RILA W ) February 21, 2000 (CA G re n ).......................................................................... 3-001, 3-005, 3-017, 6-011, 7 -033 Baird v PSC (2001) 63 W .I.R . 134; [2003] 3 L.R .C . 41 (CA G re n ) 2-005, 5-015, 5 028 Capital Bank International Ltd v Eastern Caribbean C entral Bank G D 2003 CA 7 (CARILAW ) M arch 10, 2003 (CA G re n ).......................................................................9 023 Charles v COP G D 2003 H C 10 (CA R ILA W ) M arch 26, 2003 (H C G ren )................ 9 023 D uncan v A G [1998] 3 L.R .C . 414 (CA G re n ).................................................................... 9-007 Gairy v A G [2001] U K P C 30; (1999) 59 W .I.R . 174; [2002] 1 A.C. 167; [2001] All E.R. (D) 213 (Jun) (PC G re n ) 2-004, 2-005, 3 -0 1 5 ,4 -0 0 1 ,4 -0 0 2 ,4 -0 1 9 ,4 -0 2 0 , 5-009, 5-015, 6-006, 6-008, 6-009, 6-021, 6-022, 7 -030, 8-012, 9- 035, 9 037 Mitchell v D P P [1985] L.R .C. (Const) 127 (H C Gren); affirmed [1986] L.R.C. (Const) 35 (CA G r e n ) ............................................................................................. 2-017, 6 034 Mitchell v D P P (1985) 32 W .I.R . 241; [1986] A.C. 73; [1985] 3 W .L.R. 724 (PC Gren)............................................................................................................................2-017,4-011 Nedd v Simon (1972) 19 W .I.R . 347 (CA G r e n ) ............................................................... 5 031 R v Gilbert [2002] U K PC 17; (2002) 61 W .I.R . 174 (PC G re n )...................................... 6 023 W ildman v JLSC G D 2007 CA 2 (CA R ILA W ) M arch 1, 2007 (CA G re n )................ 8-017, 8-020, 8 058 W orme v CO P [2004] U K P C 8 ; (2004) 63 W .I.R . 79 (PC G re n ) 6-016, 9-020, 9- 022, 9 023 Guyana AG v C aterpillar Americas (2000) 62 W .I.R . 135 (CA G uy) 3 032, 5-028, 5 029, 9 022 AG v M oham ed Alii (1987) 41 W .I.R . 176 (CA G uy)..........................................3 031, 9 012 A G v Persaud (2010) 78 W .I.R . 335 (CA G u y )..................................................................5 015 AG v T rotm an (No.2) U nreported January 19, 2014 (SC G uy).....................................2 -037 AG v T rotm an (Speaker o f N ational Assembly) U nreported January 20, 2014 (HC G uy)........................................................................................................................................ 5-034 AG v T rotm an U nreported July 18, 2012 (SC G u y ) 2 037 AG v T rotm an U nreported January 29, 2014 (H C G u y ) 5 034 Amcerally v A G (1978) 25 W .I.R . 272 (CA G u y )............................................................. 9 036 A nthon v G uyana M ining Enterprises Ltd G Y 1989 CA 7 (CARILAW ) June 22, 1989 (CA G uy)......................................................................................................................9 007 Baird v PSC (2001) 63 W .I.R . 134; [2003] 3 L.R.C. 41 (CA G u y )................................. 2 005 Barnwell v A G (1993)49 W .I.R . 8 8 ; [1994] 3 L.R .C. 30 (CA G u y )...................6-029, 8 052 Bata Shoe Co v C IR G Y 1975 H C 3 (CA RILA W ) January 15, 1975 (HC G uy)............................................. 7-002, 7- 003, 7-005, 7-007, 7-008, 7-016, 7-019,7-034, 7-035 Bata Shoe Co v C IR (1976) 24 W .I.R . 172 (CA G u y )............................. 6-014, 7 007, 7 008 Chue v A G (2006) 72 W .I.R . 213 (CA G u y ) 7-037, 10 020 Committee for the Defence of the C onstitution Inc v A G U nreported Novem ber 16, 2007 (HC G uy)...................................................................................................................... 8 031

x x ii

TABLE OF CASES

Evelyn v Chichester (1970) 15 W .I.R . 410 (CA G u y )........................................... 2-004, 5 019 F rank H ope C om petent A uthority v New G uyana Co (1979) 26 W .I.R . 233 (CA G uy).........................................................................................................................................6-006 Greene, R e U nreported February 20, 2012 (H C G u y )......................................................7-031 Griffith v G uyana Revenue A uthority [2006] CC J 2 (AJ); (2006) 69 W .I.R . 320 (CCJ G uy)........................................................................................................................... 7 037,10-020 G uyana Electricity C orp Inc v L iburd (2002) 6 6 W .I.R . 224 (CA G u y )......................2 002, 3 007,8 010 G uyana Sugar C orporation v Teem al (1983) 35 W .I.R . 239 (CA G u y ) ........................ 6-020 IR C v Lilleyman (1964) 7 W .I.R . 496 (CA BG); affirmed Lilleyman v IR C (1964) 13 W .I.R . 224 (SC B G )..........................................................3-021, 3-032, 4-002, 4-024, 7 014 Jagan v G ajraj (1963) 5 W .I.R . 333 (SC B G ).............................................2-012, 6-032, 7-013 Jaundoo v A G (1968) 12 W .I.R . 221 (CA Guy); affirmed (1971) 16 W .I.R . 141; [1971] A.C. 972 (PC G u y ) ................................... 4-001, 4-019, 4-020, 5-014, 5-015, 6-018 K ent G arm ent Factory (1991) 46 W .I.R . 177; [1993] 3 L .R .C . 240 (CA G u y ) 8 010, 9-036 L anghom e, R e (1969) 14 W .I.R . 353 (C A G u y ) ................................................................5-019 M anpow er Citizens A ssociation, R e (1964) 8 W .I.R . 52 (SC B G ) .................................. 6-024 M cEw an v A G U nreported Septem ber 6,2013 (SC G u y ).................................... 1-046, 5-010 Nielsen v Barker (1982) 32 W .I.R . 254 (CA G u y ).................................................. 1-046, 9-014 Petrie v A G (1968) 14 W .I.R . 292 (H C G u y )....................................................................... 2 013 Sarran, Re (1969) 14 W .I.R . 361 (C A G u y )..........................................................................5-019 Thom as v A G G Y 2009 H C 7 (C A R ILA W ) A pril 30, 2009 (H C G u y ) 1 048, 5 030, 9-012 Thom as v A G U nreported June 11,2011 (SC G uy)..........................................................3 027 Yaseen v A G (1996) 62 W .I.R . 98 (CA G u y )................................2-006, 5-019, 5-020, 6-031 Jam aica Baker v R (1975) 23 W .I.R . 463; [1975] A.C. 774 (PC J a m )...................3-014, 3 -030,6-007 Banton v A lcoa M inerals (1971) 17 W .I.R . 275 (SC Ja m )...................... 3-014, 5-010, 5 023 Beaum ont v B arrett (1836) 1 M oo. P.C. 59; (1836) 12 E.R . 733 (PC Ja m ).................... 1-018 Bell v D PP (1985) 32 W .I.R . 317; [1985] A.C. 937 (PC Ja m ).................3-014, 3-030, 5 015, 9-016 Berry v D PP (1995) 48 W .I.R . 193 (PC J a m )....................................................................... 9 036 Berry v R (1992) 41 W .I.R . 244; [1992] 2 A.C. 364 (PC Ja m )........................................... 3-030 Byfield v Allen (1970) 16 W .I.R . 1 (CA J a m ).......................................................... 1-044, 5-005 CampbeU-Rodrigues v A G [2007] U K P C 65; [2008] R .V .R . 144; [2008] 4 L .R .C . 526 (PC J a m )........................................................................................................ 5-028, 6-028, 9-009 C ork (Van) v D P P JM 1998 SC 62 (C A R ILA W ) Decem ber 1, 1998 (SC J a m )................................................................................................................ 8 010, 8-012,8 067 D abdoub v Vaz JM 2008 SC 39 (CA R ILA W ) April 11, 2008 (SC J a m ) 2 013, 5-031 D PP v M ollison [2003] U K P C 6 ; (2003) 64 W .I.R . 140; [2003] 2 A.C. 41 (PC J a m )...........................................................2 002, 3- 007, 3 020,4-026, 5-023, 6-029, 6 030, 7-003, 7-004, 7-012, 7-016, T 026, 7-034, 9 018, 9 032 D P P v N asralla (1967) 10 W .I.R . 299; [1967] 2 A.C. 238 (PC Jam ) 3-014, 3-015, 3-016, 5-023, 6 -0 0 7 ,6 010 Dunkley v R (1994) 45 W .I.R . 318; [1995] 1 A .C . 419 (PC J a m ).................................... 5-015 Franklyn v R (1993) 42 W .I.R . 262 (PC J a m ).....................................................................5-023 Fuller v A G (1998) 56 W .I.R . 337 (CA J a m ) .............................................2-002, 5-009, 9-037 Gleaner C o L td v A braham [2003] U K P C 55; (2003) 63 W .I.R . 197; [2004] 1 A.C. 628 (PC Jam )............................................................................................................................3-030 G ran t v D P P (1982) 30 W .I.R . 246; [1982] A.C. 190 (PC J a m ) ...................................... 5-007 G ra n t v R [2004] U K P C 27; (2004) 64 W .I.R . 234; [2004] 2 A.C. 550 (PC J a m ) 3 024 G rant v R [2006] U K P C 2, (2006) 6 8 W .I.R . 354 (PC J a m )................................3-033,9-022

TABLE OF CASES

xxiii

Hinds v R (1976) 24 W .I.R . 326; [1977] A.C. 195 (PC J a m )................. 1-042,1 050, 2 002, 3-001, 3-003, 3-007, 3-028, 3 030, 4-005,4-007, 4-009, 4-017, 4-018, 4-024, 5-004, 6-029, 6-034, 7 004, 7 006, 7 007, 7 008, 7009, 7012, 7-018, 7-026, 7-027, 7-034, 7-036, 7-038, 8 013, 8 014,8 024, 8 054, 8-056, 9-002, 9-022, 9-029 Huntley v AG (1994) 46 W .I.R . 218; [1995] 2 A.C. 1 (PC Jam )....................................... 3-018 Independent Jam aica Council for H um an Rights (1998) L td v M arshall-B um ett U nreported July 12, 2004 (CA Jam); reversed [2005] U K P C 3; (2005) 65 W .I.R. 268; [2005] 2 A .C. 356; [2005] 2 W .L.R . 923; [2005] 2 L.R .C. 840 (PC Ja m ) 2-002, 3-003, 3 -0 0 5 ,4 -0 0 1 ,4 -0 1 6 , 4 -0 1 7 ,4 -0 1 8 ,4 -0 2 2 ,4 -0 2 7 , 6-011, 6-029, 7-004, 7-017, 7-018, 8-002, 8-007, 8-012, 8-013, 8-014, 8-028, 8-045 Jam aica Stock Exchange v F air Trading Com m ission JM 2001 CA 1 (CARILAW ) January 29,2001 (CA J a m )..................................................................................................7-001 King v R (1968) 12 W .I.R . 268 (PC Ja m )..............................................................................6-007 Lewis v A G (2000) 57 W .I.R . 275; [2001] 2 A.C. 50 (PC J a m ) 3-001, 3-026, 5 015, 5-019, 5-020, 5-025, 6-008, 6-010, 6-013, 6-027, 6-032, 6-036, 7-011, 8-007, 9 009 M attison v Junor (1977) 15 JL R 194 (SC J a m )................................................................... 5-031 Millen v University H ospital (1986) 44 W .I.R . 274 (CA Jam )..........................................5-006 N ation v D PP U nreported July 15,2011 (SC Ja m )............................................................ 7-022 Olint C orp v Financial Services Comm ission JM 2007 SC 120 (CA RILA W ) December 24, 2007 (SC J a m ) ............................................................................................. 7 001 Panton v M inister o f Finance [2001] U K P C 33; (2001) 59 W .I.R . 418; [2001] 5 R.L.C. 132 (PC Ja m )...................................................................................8-002, 8-041, 8-056 Police Federation v Independent Commission o f Investigations [2013] J.M .F.C . Full 3 (SC Jam )............................................................................................................................ 10 022 P ratt v A G (1993) 43 W .I.R . 340; (1994) 2 A.C. 1 (PC Ja m ).....3-014, 3-015, 3-021, 3 025, 3-030, 5-015, 5-022, 5-025, 5-036, 9-003, 9 013, 10 017 R v A G , Ex p. G range (1976) 23 W .I.R . 139 (SC Ja m )..................................................... 6-034 R v Cam pbell [2010] U K P C 26; (2007) 70 W .I.R . 75 (PC J a m ) ...................................... 2-003 R v CO P Ex p. Cephas (No.2) (1976) 24 W .I.R . 500 (FC Jam )....................................... 3-002 R v Henry JM 2009 SC 91 (CA R ILA W ) O ctober 2, 2009 (SC Ja m ).............................. 7-031 R v Industrial Disputes T ribunal and H alf M oon (1979) 16 JL R 333 (SC J a m ) 3-021 R v M inister o f N ational Security Ex p. Grange (1976) 24 W .I.R . 513 (FC Ja m ) 3-002, 6-034 R v Peart JM 2003 CA 53 (CA R ILA W ) December 19, 2003 (CA Ja m )........................ 7-010 Ram charan v Com m issioner o f Correctional Services (2007) 73 W .I.R . 312 (CA J a m ).......................................................................................................................................... 9-038 Riley v A G (1982) 35 W .I.R . 729; [1983] 1 A.C. 719; [1982] 3 W .L.R. 557 (PC J a m )............................................................................................................................. 3-014,5 022 Robinson v R (1985) 32 W .I.R . 330; [1985] A.C. 956; [1985] 2 All E.R. 594 (PC Ja m ) 2-002, 9-016 Seaga v A G JM 1997 SC 82 (CA R ILA W ) Novem ber 7,1997 (SC Jam )......................5-011 Seaga v A G JM 2004 SC 27 (CA R ILA W ) A pril 21, 2004 (FC Ja m ).............................5 012 Thom pson v Forrest (1967) 11 W .I.R . 296 (SC J a m )....................................................... 3-008 Tomlinson v Television Jam aica [2013] J.M .F.C . Full 5 (FC J a m ) ................. 3-011, 3- 022, 5-007, 9-002 Van C ork v D PP JM 1998 SC 62 (CA R ILA W ) Decem ber 1,1998 (SC J a m ) 8 021 W atson v R [2004] U K P C 34; (2004) 64 W .I.R . 241; [2005] 1 A.C. 472; [2004] 3 W .L.R. 841; [2004] 4 L.R .C . 811 (PC J a m ) 1-043, 3-014, 3-015, 3-018, 3-020, 4-026, 5-023, 5-025, 6 010, 9-018 Williams v Holness [2013] JM SC Civ 185 (SC Ja m ) 2-029, 4-018 Williams v Independent Com m ission o f Investigations [2012] J.M .F.C . Full 1 (FC Jam) M ay 25, 2012....................................................................................9-022, 9 026, 10-021

x x iv

TABLE OF CASES

M ontserrat Cabey v The G overnor MS 2004 H C 1 (CA R ILA W ) O ctober 21, 2004 (H C M o n t).............................................................................................................................. 9 023 COP v Cavanaugh (2005] U K PC 28 (PC M o n t).......................................................7 014 St. Kitts-Nevis A G v Lawrence (1983) 31 W .I.R . 176 (CA S K N ).................................................... 5-010 A G v Nias K N 2008 C A 7 (CA R ILA W ) N ovem ber 25, 2008 (CA S K N )....................9 023 A G v Payne (1982) 30 W .I.R . 8 8 (CA S K N )....................................................................... 5 011 A G v R odionov (2004) U K P C 38; (2004) 65 W .I.R . 115 (PC S K N )................. 2 003, 2-004 Blake, Re (1994) 47 W .I.R . 174,180 (C A S K N ).......................... 2-004, 5-011, 5-020, 5 032 Brantley v M artin U nreported F ebruary 12,2014 (H C S K N )..............2 009, 2 019, 5 034 Browne v R [1999] 3 L .R .C . 440 (PC S K N )......................................................................... 2-002 Browne v R [1999] U K P C 21; (1999) 54 W .I.R . 213; [2000] 1 A .C. 45 (PC SK N ).................................................................................... 3-007, 3 020, 4-026, 7 004, 7-026 Charles v Phillips (1967) 10 W .I.R . 423 (CA S K N )................................. 6 -0 2 5 ,6 -0 3 4 ,9 017 CO P v Powell (1968) 12 W .I.R . 403 (H C S K N ).................................................................. 6-034 Fox v R [2001] U K P C 41; [2001] 61 W .I.R . 157; [2002] 1 L.R .C. 664 (PC S K N ) 4-026 Francis v C O P (1973) 20 W .I.R . 550 (PC S K N )................................................................ 6 034 G erald v The G overnor K N 2003 H C 14 (C A R ILA W ) A pril 28,2003 (H C SK N ).... 9 023 Inniss v A G [2008] U K P C 42; (2008) 73 W .I.R . 187; [2009] 2 L.R .C . 546 (PC SK N ).............................................................................................................. 5-015,8 054,9 035 Liburd v H am ilton U nreported Decem ber 5,2011 (CA S K N )........................................5-031 Lucas v M allalieu-W ebbe K N 2003 H C 3 (CA R ILA W ) January 22, 2003 (HC S K N )..........................................................................................................................................7-025 St. Kitts-Nevis-Anguilla A G v Reynolds (1979) 43 W .I.R . 108; [1980] A.C. 637; [1979] 3 All E.R. 129 (PC SK N A )...............................................................................................4-026, 6-025, 6-034, 9 017 St. Lucia A ttorney G eneral’s Reference (2013) 83 W .I.R . 228 (CA S L U ) 4-018, 5-013,10-005 Francois v A G LC 2001 H C 16 (CA R ILA W ) M ay 24, 2001 (H C S L U )..... 3-025, 5-008, 6-002, 6-023, 9 003, 9 032 Francois v A G LC 2004 CA 3 (C A R ILA W ) M arch 29, 2004 (CA S L U )..................... 5 011 Francois v C om pton LC 2002 H C 10 (CA R ILA W ) A pril 22, 2002 (H C SLU); affirmed in LC 2003 C A 2 (C A R ILA W ) June 18,2003 (CA SLU )...2-027, 5-020, 5 032 Fraser v JLSC [2008] U K P C 25; (2008) 73 W .I.R . 175; [2008] All E.R . (D) 82 (M ay) (PC S L U ) 2-002, 5 015, 6-021, 8-022, 8-044, 8-054, 8-055, 8 056, 8-067, 9 035 G irard v A G LC 1986 H C 24 (C A R ILA W ) December 17,1986 (H C S L U )............... 1-046 G ordon v M inister o f Finance (1968) 12 W .I.R . 416 (HC S L U ).................................... 5-011 M agloire v JLSC L C 2007 H C 1 (CA R ILA W ) January 25, 2007 (H C S L U ) 8 067 Ogilvy v M inister o f Legal Affairs [2002] U K P C 7 (PC S L U )......................................... 8 029 R v Hughes (2001) 60 W .I.R . 156; [2002] 2 L.R .C . 531 (CA SLU); affirmed [2002] U K PC 12; (2002) W .I.R . 156; [2002] 2 A.C. 259; [2002] 2 W .L.R . 1058; [2002] 2 L.R .C. 585 (PC S L U )............... 1-005, 3-001, 3-018, 3-020, 3-022, 3-025,4-003, 4-023, 4-026, 5-022, 5-023, 5 025, 6-007, 9 018 R v W ilson LC 2010 H C 9 (CA IRLA W ) M ay 26, 2010 (H C S L U )...............................7 026 St. Vincent and the Grenadines Andrews v D P P VC 2008 CA 1 (CA R ILA W ) July 14, 2008 (CA SV G )....................... 7 031 Beache v Joseph V C 1986 H C 14 (CA R ILA W ) Novem ber 17,1986 (H C SV G )........ 5 011 G ooderidge v R VC 1998 C A 9 (CA R ILA W ) January 12,1998 (CA S V G ).... 3 026, 6-023

TABLE OF CASES

XXV

M cKenzie v Sam pson VC 2004 CA 7 (CA R ILA W ) M arch 29, 2004 (SC S V G ) 1-045 Russell v A G (1995) 50 W .I.R . 127 (CA S V G ).......................................................3-008, 9-007 Russell v A G (1997) 51 W .I.R . 110 (PC S V G )................................................................... 3-008 SVG G reen P arty v A G VC 2005 H C 30 (CA R ILA W ) Novem ber 18, 2005 (H C SV G )..........................................................................................................................................5-011 Toussaint v A G [2007] U K P C 48; (2007) 70 W .I.R . 167; [2008] 1 All E.R . 1 (PC SV G ).........................................................................2 013, 3-011,6-020, 6-032, 7-013, 9-004 W arner v A G (1996) 54 W .I.R . 145 (CA SV G )...................................................... 9-036, 9-037 Trinidad and Tobago A G v James (1996) 50 W .I.R . 477 (CA T T ) ............................................................ 5-005, 8-065 A G v Luciano Valley Vue H otel (2001) 61 W .I.R . 406 (CA T T )..................................... 9-038 A G v M athura T T 2009 C A 14 (C A R ILA W ) M arch 3,2009 (CA T T ) ........................ 3-021 A G v M cLeod (1984) 32 W .I.R . 450; [1984] 1 All E.R . 694 (PC T T ) ...............2-002, 2-013, 2-024, 3-007,4-015 A G v N orthern C onstruction Ltd T T 2009 CA 8 (CA R ILA W ) February 27, 2009 (C A T T )......................................................................................................... 9 023,9-028,9-031 A G v Perch T T 2000 CA 48 (CA R ILA W ) Decem ber 19, 2000....................................7-037 A G v Phillip [1995] 1 A .C. 396; [1994] 3 W .L .R . 1134; [1995] 1 All E.R . 93 (PC T T )................................................................................................................................... 2 017 A G v R am anoop [2005] U K P C 15; (2005) 6 6 W .I.R . 334; [2006] 1 A.C. 328 (PC T T ).......................................................5 015, 5-016, 6-022, 9-034, 9 035, 9-037, 9 038 A G v Seepersad TT 2009 CA 44 (CA R ILA W ) Decem ber 14, 2009 (CA T T ) 7 026 AG v Sm ith [2009] U K P C 50; (2009) 75 W .I.R . 457; [2010] 3 L.R .C. 63 (PC TT) 4-003, 5-005 AG v Thom as (1979) 31 W .I.R . 355 (CA TT); affirmed (1981) 32 W .I.R . 375; [1982] A.C. 113 (PC T T )..............................................................3-005, 5-019, 7-032, 8-054, 9-004 AG v Trinidad and T obago Civil Rights A ssociation T T 2007 CA 31 (CA RILA W ) July 18,2007 (C A T T )........................................................................................................... 7-010 AG v W hitem an (1991) 39 W .I.R . 397; [1991] 2 A.C. 240 (PC T T ) 3-017, 3-018, 3 -019,4-002,5-001 A ttin v AG T T 2003 H C 133 (C A R ILA W ) N ovem ber 11, 2003 (H C T T )................... 7-026 Bain, Re T T 1987 H C 132 (CA R ILA W ) July 30, 1987 (H C T T ) 2-004, 2-007, 2-011,5-020, 8-030 Bazie v A G (1971) 18 W .I.R . 113 ( C A T T ) .......................................................................... 8-011 Beckles vD ellam ore (1965) 9 W .I.R . 299 ( C A T T ) 4-026, 6-034 Belfonte v A G (2005) 6 8 W .I.R . 413 (CA T T ) .................................................................... 9 037 Bobb v M anning [2006] U K P C 22; [2006] All E.R . (D) 227; [2006] 4 L.R .C . 735 (PC T T )................................................. 2-002,2-019, 2-020, 5-004, 5-020, 5-032, 6-002, 6-018 Boodhoo v A G (2004) 64 W .I.R . 370 (PC T T ).....................................................................8-065 Boodram v A G T T 1989 H C 62 (CA R ILA W ) M ay 26, 1989 (H C T T )......................... 2-013 Boodram v A G (1995) 47 W .I.R . 459 (CA T T ) 6-006, 6 019 Boodram v State [2001] U K P C 20, (2001) 59 W .I.R . 493 (PC T T ) .................................5-015 Central Broadcasting Services L td v A G [2006] U K P C 35; (2006) 6 8 W .I.R . 459 (PC T T )................................................................................................................................ 5-007,5-015 C haitan v A G (2001) 62 W .I.R . 244 (CA T T ) ......................................................................9-023 Charles v JLSC [2002] U K P C 34; (2002) 61 W .I.R . 471 (PC T T ) 8-030, 8-055, 8-067 Charles v State (1999) 54 W .I.R . 455; [2000] 1 W .L .R . 384 (PC T T ).............................. 5-015 Chokolingo v A G (1980) 32 W .I.R . 354; [1981] 1 All E.R . 244; [1981] 1 W .L.R . 106 (PC T T ).......................................................................................................... 2 -0 0 2 ,3 -0 0 7 ,6 006 Chokolingo v Law Society (1978) 30 W .I.R . 372 (CA T T ) .............................................. 9-010 Collymore v A G (1967) 12 W .I.R . 5 (CA TT); affirmed (1969) 15 W .I.R . 229; [1970] A.C. 538; [1969] 2 All E.R . 1207 (PC T T ) ..................3-014, 4-D 01,4 -0 05,4-020, 5-001, 5 -0 0 4 ,5-009,6-018, 6-034, 7-001, 9-030

x x vi

TABLE OF CASES

C ooper v D irector o f Personnel A dm inistration [2006] U K P C 37; (2006) 6 8 W .I.R . 477; [2007] 1 W .L.R . 101 (PC T T )......................................................................... 7-032, 7-035 D aniel v A G T T 2009 H C 190 (C A R IL A W ) July 20,2009 (H C T T )............................. 3-021 De Freitas v Benny (1975) 27 W .I.R . 318; [1976] A .C . 239; [1975] 3 W .L .R . 388 (PC T T )................................................................................................................................ 3 015,5-023 D irector o f Personnel A dm inistration v C ooper T T 2005 CA 5 (C A R IL A W ) January 19, 2005 (C A T T ).......................................................................... 7-005, 7-010, 7-035 D um as v A G U nreported O ctober 19,2014 (CA T T ).......................................................... 5 011 D urity v A G [2002] U K P C 20; [2003] 1 A .C. 405 (PC T T ).................... 8 048, 8-049, 8-055, 8-067 Edw ards v Sgt. Alleyne (1970) 17 W .I.R . 358 (CA T T )......................................................6-034 Evelyn v A G T T 2009 H C 171 (C A R IL A W ) July 6 , 2009 (H C T T ) .............................. 7-026 Ferguson v A G T T 2010 C A 53 (C A R IL A W ) D ecem ber 17, 2010 (CA T T ) 3-021, 8 -0 1 1 ,9 -0 2 3 ,9 -0 3 0 Francis v A G U nreported F ebruary 14,2014 (C A T T ) 9 010, 9 -0 28,9-029, 9-031 G afoor v Integrity Com m ission T T 2012 H C 330 (C A R IL A W ) O ctober 11, 2012 ( H C T T ).....................................................................................................................................8-011 G uerra v Baptiste (1995) 47 W .I.R . 439; [1995] 4 All E.R . 583 (PC T T ) ....................... 3-030 H arrikissoon v A G (1979) 31 W .I.R . 348; [1980] A .C. 265 (PC T T ) ................. 5-010, 9-036 H ochoy v N U G E [1964] 7 W .I.R . 174 (C A T T )........................... 2 003, 2-004, 2-005, 6-021 Integrity Com m ission v A G I T 2007 H C 201 (C A R IL A W ) O ctober 15, 2007 (H C T T ).......................................................................................................4-010, 8 008, 8-054, 8 058 Jaroo v A G [2002] U K P C 5; (2002) 59 W .I.R . 519 (PC T T ) ............................... 9-036, 9-038 Kareem v A G U nreported D ecem ber 21,1990 (CA T T ) ....................................................6 023 KelshaU v P itt Ex p. Kelshall (1971) 19 W .I.R . 136 (H C T T )............................... 6 -0 3 4 ,7 014 K han v State [2003] U K P C 79; (2003) 64 W .I.R . 319; [2005] 1 A.C. 374 (PC T T )................................................................................................................................ 3 -0 2 1 ,6 -0 1 4 Lassalle v A G (1971) 18 W .I.R . 379 (C A T T )............... 1-006, 3-016, 3-021, 6-007, 6-008, 6-014, 6-031, 9-025 Lassalle v A G (1972) 20 W .I.R . 361 (CA T T )...............................6-006, 6-019, 6 023, 6-034 M aharaj v A G (N o .l) (1976) 29 W .I.R . 318; [1977] 1 All E.R . 411 (PC T T )...3 015, 9-034 M aharaj v A G (N o.2) (1977) 29 W .I.R . 325 (CA TT); reversed (1978) 30 W .I.R . 310; [1979] A.C. 385; [1978] 2 A ll E.R . 670 (PC T T ) ...................... 2-002, 3-007, 3-015, 5-005, 5-006, 5-015, 5 -0 1 6 ,6 -0 0 9 ,8 011 , 8 065, 9-002, 9-034, 9-035, 9-036 M ason v Jagroo U nreported M ay 23,2014 (H C T T ) 8-065, 8-067 M atthew v State [2004] U K P C 33; (2004) W .I.R . 412; [2005] 1 A .C. 433; [2004] 3 W .L.R . 812; [2004] 4 L .R .C . 777 (PC T T ).................. 1-002, 2-005, 3 001, 3-010, 3-011, 3-021, 3-022, 4-002, 5-023, 5 024, 6 006, 6-029, 6-033, 7-015, 7-038, 8-028, 9-004, 9-009 M cNicholls v JLSC [2010] U K P C 6 ; (2010) 77 W .I.R . 436; [2010] 4 L.R .C. 715 (PC T T )............................................................................................................................................. 8 067 M oham m ed v M oraine (1995) 49 W .I.R . 371 (H C T T ) .......................................3-014, 5 006 M oham m ed v State (1998) 53 W .I.R . 444 (PC T T )........................................................... 6 006 M ootoo v A G (1979) 30 W .I.R . 411; [1979] 1 W .L.R . 1334 (PC T T )............................3-033 M organ v A G (1987) 36 W .I.R . 396 (PC T T ) ......................................................... 9-028, 9-031 Naidike v A G [2004] U K P C 49; (2004) 65 W .I.R . 372 (PC T T )..................................... 3 026 N orthern C onstruction Ltd v A G T T 2002 H C 104 (C A R ILA W ) July 31, 2002 (HC T T ).......................................................................................................6-031, 9 023, 9-025, 9 032L Office o f Prime M inister TT, R e 2002 H C 115 (C A R ILA W ) A ugust 27, 2002 (H C T T ).................................................................................................................................5-020, 5-032L Panday v G ordon [2005] U K P C 36; (2005) 67 W .I.R. 290; [2006] 1 A.C. 427 (PC T T )................................................................................................................... 9 -0 1 0 ,9 016, 9-030 P anday v Sam pson T T 2007 C A 36 (C A R IL A W ) O ctober 19, 2007 (CA T T ) 3-02S, Panday v Virgil [2008] U K P C 24, (2008)72 W .I.R . 333 (PC T T ) ...................................6-020

TABLE OF CASES

x x v ii

Paponette v A G [2010] U K P C 32; (2010) 78 W .I.R . 474; [2012] 1 A .C. 1 (PC XT).............................................................................................................................. 5 015,9 022 Paul v State U nreported July 28,1981 (PC T T ).................................................................. 3-030 Perch v A G [2003] U K P C 17; (2003) 62 W .I.R . 461 (PC T T ) 5-010, 7-037,10-020 Peters v A G (2001) 62 W .I.R . 244 (CA T T ) ...................2-013, 3-003, 3-004, 3-021, 3-022, 5-031 ,6 -0 1 6 ,9 -0 2 3 Phillips v D P P [1992] 1 A .C. 545; [1992] 2 W .L.R . 211; [1992] 1 All E.R . 665 (PC T T ).............................................................................................................................. 2-017, 6-019 Pierre v M banefo (1964) 7 W .I.R . 433 (CA T T )................................................................. 5 014 PSC v M urray TT 2000 C A 11 (CA R ILA W ) February 7, 2000 (CA T T ).....................3-003 Public Service A ppeal Board v M araj (2010) 78 W .I.R . 461 (PC T T ) 3-033,3-034, 9-021, 9-023, 9-028 R am bachan v T T T and A G T T 1985 H C 8 (CA R ILA W ) January 17, 1985 (HC T T ).............................................................................................................................5-006,10-020 Ram logan v M ayor o f San Fernando T T 1985 H C 65 (CA R ILA W ) A pril 29, 1985 (H C T T ).................................................................................................................................. 5 006 R am sarran v A G [2005] U K P C 8 ; (2005) 6 6 W .I.R . 280; [2005] 2 A.C. 614 (PC T T )........................................................................................................................................... 3 003 Rees v Crane (1994) 43 W .I.R . 444 (PC T T )............................................. 6-021, 8-048, 8-052 Robinson v Sealey TT 1974 H C 8 (CA R ILA W ) June 17,1974; (1974) 1 C.C.C.B.R. 94 (H C T T ) ...................................................................................... 6-034, 9-022, 9-025, 9-031 R oodal v State [2003] U K P C 78; (2003) 64 W .I.R . 270; [2005] 1 A.C. 328 (PC T T )................................................. 3-001, 3-022, 4-026, 5- 002, 5-024, 7-015, 9 009, 9-016 Sanatan D harm a M ah a Sabha v A G [2009] U K P C 17; (2009) 76 W .I.R . 378; (H C CA PC TT); (2009) 4 L .R .C . 818 (PC T T )................... 2-003, 2-006, 3-007, 3-010, 3-020, 4-024, 5-009, 9 023 Sankar v State (1994) 46 W .I.R . 452; [1995] 1 All E.R . 236 (PC T T ) ............................5-015 Sharm a v A G [2005] 1 L.R .C . 148 (CA T T )......................................................................... 2 006 Sharm a v Browne-Antoine [2006] U K PC 57;(2006) 69 W .I.R . 378 (PC T T )............... 6-021, 7-031 Sharm a (Chandresh) v A G [2007] U K P C 41; (2007) 70 W .I.R . 287 (PC T T ) 2-020, 3-003, 3-006, 5-034 Smith v LJ W illiams Ltd (1980) 32 W .I.R . 395 (CA T T ) 2-002, 3-007, 5 009, 9-010 Sookoo v A G (1985) 33 W .I.R . 338; [1986] A.C. 63 (CA T T )..............2-002, 3-007, 8 046 Suratt v A G U nreported January 26,2006 (CA T T ).............................................3-033, 8-011 Suratt v A G [2007] U K P C 55; (2007) 71 W .I.R . 391; [2008] 1 A.C. 655 (PC T T ) 2-002, 3-007, 3 -0 2 8 ,3 -0 3 3 ,4 -0 1 7 ,4 -0 1 8 , 6 -0 2 9 ,7 -0 3 6 ,8 -0 0 1 ,8 -0 0 7 , 8-010, 8-011, 8-012, 8-013, 8-014, 8 -0 6 7 ,9 -0 1 5 ,9 -0 1 6 ,9 -0 2 1 ,9 -0 2 3 ,9 -0 2 8 ,9 -0 3 0 ,1 0 -0 2 2 Thom as v A G (1981) 32 W .I.R . 375; [1982] A.C. 113 (PC T T ) ........... 2-002, 2-004, 3-007, 6-020, 6-031,7-032, 7-035 Thom as v Baptiste (1998) 54 W .I.R . 387 (CA T T )..................... 2^ 002, 3-016, 3-021, 3-026, 6 -0 0 1 ,6 -0 0 8 ,7 -0 1 1 ,7 -0 1 6 Thom as v Baptiste [2000] 2 A .C. 1; [1999] 2 L.R .C. 733 (PC T T ) ..................... 2-002, 6-019 Thornhill v A G (1974) 27 W .I.R . 281 (H C T T ) ..................................................... 3-016,4-002 Thom hilLv A G (1976) 31 W .I.R . 498; [1981] A .C. 61 (PC T T ) 3-007, 3-015, 5-005 Trinidad Island-W ide Cane Farm ers’ Association Inc v Seereeram (1975) 27 W .I.R . 329 (CA T T )..............................................................................................................2-002, 3-007 Weekes v M ontano (1970) 16 W .I.R . 425 (H C T T ) ........................................................... 6-034 Yaseen v A G (1981) 32 W .I.R . 375 (PC T T )........................................................................6-031 W est Indies Associated States A G v A ntigua Times (1973) 20 W .I.R . 573 (CA W IA S ).................................... 3 032, 3-033 Cam acho A nd Sons Ltd v Collector o f Custom s (1971) 18 W .I.R . 159 (CA W IA S).. 1-044 M axim ea v A G (1974) 21 W .I.R . 548 (CA W IA S)............................................................ 6 034

x x v iii

TABLE OF CASES

CARIBBEAN C O U R T O F JU S T IC E Original Jurisdiction H um m ingbird Rice M ills L td v Surinam e an d C aribbean C om m unity [2012] C C J 1 (OJ); (2012) 79 W .I.R . 4 4 8 .................................................................................................. 4-029 Myrie v Barbados [2013] C C J 3 (OJ); (2013) 83 W .I.R . 104............................................ 4-029 TC L v C aribbean C om m unity [2009] C C J 2 (OJ); (2009) 74 W .I.R . 319.......... 4-029, 6-037 TC L v G uyana [2009] C C J 1 (O J).......................................................................................... 4-028 TC L v G uyana (N o.2) [2009] CCJ 5 (OJ); (2009) 75 W .I.R . 327...........4-028, 4-029, 6-037

FO R E IG N STA TES Australia A G for A ustralia v R [1957] A.C. 288 (PC Aus) (Boilerm akers’ case)..7 008, 7-027, 7-031 British Im perial Oil C o L td v Federal Com m issioner o f T axation (1926 27) 38 C .L.R. 153 (H C A u s )............................................................................................................. 3-031 Forge v A ustralian Securities and Investm ents Com m ission (2006) 229 A .L .R . 223 (H C A u s ) ................................................................................................................................. 8-056 James v Com m onw ealth o f A ustralia (N o.2) [1936] A.C. 578(PC A u s ) ........................3-021 M inister for Im m igration and Ethnic Affairs v Teoh (1995) 183 C .L.R . 273 (H C A u s )...........................................................................................................................................7-016 Nicholas v R (1998) 193 C .L .R . 173 (H C A u s )................................................................... 7-021 Sykes v Cleary (1992) 176 C .L .R . 77 (H C A us).......................................................2-013, 5-031 W ilson v M inister for A boriginal Affairs (1996) 189 C .L .R . 1(H C A u s).......................7 028 Canada A m endm ent o f the C onstitution o f C anada N os 1, 2, 3, R e (1982) 125 D .L .R . (3d) 1; [1981] 1 S.C .R. 753 (SC C a n ) .......................................................................................... 2-007 BC M o to r Vehicle Reference [1985] 2 S.C.R. 486 (SC C an )..............................................8 011 C anada (H ouse o f Com m ons) v Vaid [2005] 1 S.C .R. 6 6 (SC C a n ) ............................... 7-013 CC for J& P v A G [1993] 2 L.R .C . 279 (SC C an)..................................................................5-011 D uke v R [1972] S.C .R. 917 (SC C an).................................................................................... 8-011 H unter v Southam Inc (1984) 11 D .L .R . (4th) 641; [1984] 2 S.C.R. 145 (SC C a n )...............................................................................................................................1-002, 3-021 Kielley v C arson (1842) 13 E.R . 225; (1842) 4 M oo. P.C. 63 (PC N fld ) 1-018, 2-012 M anitoba Language Rights, R e [1985] 1 S.C .R. 721 (SC C a n ) .......................... 1 043, 6-010 M inister o f Justice vB orow ski [1981] 2 S.C.R. 575; 130 D .L .R . (3d) 588 (SC C an)... 5-011 Ocean P ort H otel Ltd v British C olum bia [2001] 2 S.C .R. 781 (SC C an).......................8-010 R v Oakes [1986] 1 S.C.R. 103 (SC C a n )..................................................................9 023, 9 031 Reference re Language Rights (1985) 19 D .L .R . (4th) 1,2 4 (SC C a n ) ...........................6-005 Reference re R em uneration o f Judges o f the Provincial C ourt o f Prince Edw ard Island [1997] 3 S.C.R. 3 (SC C a n ) ..................................................................................... 8 013 Reference re R esolution to A m end the C onstitution [1981] 1 S.C.R. 753 (SC C a n )..........................................................................................................................................1 049 T horson v C anada (A ttorney General) [1975] 1 S.C.R. 138 (SC C a n ) 5 010, 5 011 Valente v R [1985] 2 S.C.R. 673 (SC C a n ) 8-0 0 3 ,8 005, 8-006, 8-010, 8-039, -063 Vriend v A lberta [1998] 3 L.R .C. 483 (SC C a n )................................................................. 5 011 Ceylon Bribery Com m issioners v Ranasinghe [1965] A.C. 172; [1964] 2 W .L.R . 1301; [1964] 2 All E.R . 785 (PC C e y )...........................................................................................4-011, 5-002 K ariapper v W ijesinha [1968] A.C. 717 (PC Cey)................................................................ 4-010 Liyanage v R [1967] 1 A.C. 259 (PC C e y )................................................... 7 018, 7 019,7-021

TABLE OF CASES

x x ix

N akkuda Ali v Jayaratne [1951] A.C. 6 6 (PC C e y )............................................................ 6-026 Peiris v Perera (1969) 72 N ew Law R eports 232 (C ey).......................................................5 031 Cook Islands Reference by the Q ueen’s Representative [1985] L .R .C . (Const) 56 (CA C ook Is)

2-007

Fiji M atalulu v D P P [2003] 4 L .R .C . 712 (SC F iji).....................................................................7 031 Gibraltar Chief Justice o f G ibraltar, R e [2009] U K P C 43; [2010] 2 L.R .C . 450 (PC G ib).......................................................................................8-004, 8-013, 8-017, 8-047, 8-049 Hong Kong Leung Kw ok H ung v C hief Executive [2006] H .K .C .U . 731 (CA H K ) 1-043, 6-010 Shum K w ok Sher v H K SA R [2002] H .K .C .F .A . 30; [2002] 5 H .K .C .F.A .R . 381; [2002] 2 H .K .L .R .D . 793; [2002] 3 H .K .C . 117; [2002] 806 H .K .C .U . 1; [2002] H .K .E.C . 8 4 7 .......................................................................................................................... 6-014 India G andhi v U nion of India A IR 1978 SC 597 (C A R IL A W )................................................2-006 K esavananda Bharati v The State o f K erala 1973 S.C. 1461 (SC I n d ) ...........................4-022 M inerva Mills L td v U nion o f India A IR 1980 SC 1789 (CARILAW ); (1980) 3 S.C.C. 625; 1981 1 S.C.R. 206; 1980 (12) U J 727 SC (SC Ind)..................................... 4-022 R angarajan v Jagjivan R am [1990] L.R .C . (Const) 412 (SC In d ).................................... 3-019 Kenya Fatum a Binti M oham ed bin Salim Bakhshuwen v M oham ed bin Salim Bakhshuwen [1952] A.C. 1 (PC K e n ) .........................................................................................................3-002 M alaysia K anda v G overnm ent o f M alaya [1962] A.C. 322; [1962] 2 W .L.R . 1153 (PC M alaya).....................................................................................................................................4-026 N ingkan v T un A bang H aji Openg (1966) 2 M L J 187.......................................................2-007 Teh Chen Poh v Public Prosecutor, M alaysia [1980] A.C. 458; [1979] 2 W .L.R . 623 (PC M a i)...................................................................................................................................7-022 M alta Olivier v Buttigieg [1967] 1 A.C. 115 (PC M a lta )................................................................9-009 M auritius Ahnce v D P P [1999] 2 A.C. 294; [1999] 2 W .L.R . 1305; [1999] 2 L.R .C . 676 (PC M au r)................................................................................... 1-003, 6-016, 6-029, 7-005, 7-008 Ali,v R [1992] 2 A.C. 93 (PC M a u r)................................................................................. ,....7-022 D hooharika v A G [2014] U K P C 11 (PC M a u r).................................................................. 8-065 M atadeen v Pointu [1999] 1 A.C. 98; [1998] 3 W .L.R . 18 (PC M aur)............................. 3-022 M ungroo v R [1991] 1 W .L.R . 1351 (PC M aur) a t 1355................................................... 3-030 Panday v JLSC [2008] U K P C 52; [2009] 4 L.R .C . 340 (PC M a u r)..................................8-067 Sabapathee v T h e State [1999] 1 W .L.R . 1836 (PC M a u r) 6-013, 6-014, 6-016 State v K hoyratty [2006] U K P C 13; [2007] 1 A.C. 80 (PC M a u r) .....................7 004, 7 021, 7-022, 9-025 Namibia State v K [2000] 4 L.R .C . 129 (SC N am )

6-023

XXX

TABLE OF CASES

Nigeria Adegbenro v A kintola [1963] A.C. 614; [1963] 3 W .L .R . 63; [1963] 3 All E.R. 544 (PC N ig) 2 -0 0 7 ,2 009 Rhodesia M adzim bam uto v L ardner-B urke [1969] 1 A.C. 645 (PC S R h o d ) 2 -0 3 2 ,4 -0 0 6 ,4 -0 1 9 Runyow a v R [1967] 1 A .C. 26; [1966] 2 W .L.R . 909; [1966] 1 All E.R . 633 (PC R h o d )........................................................................................................................................ 3 010 Seychelles C henard & C o v Arissol [1949] 2 A.C. 127; (1949) 65 T.L .R . 72; [1949] L JR 330 (PC Sey)............................................................................................................................................4-006 Sierra Leone A kar v A G [1970] A .C. 853;[1969] 3 W .L.R . 970; [1969]3 All E.R. 384 (PC S L )

4-011

Solomon Islands Hilly v G overnor G eneral [1994] 2 L.R .C. 27 (CA Sol Is)................................................. 2 007 U lufa’alu v G overnor G eneral [2001] 1 L.R .C . 425 (H C Sol Is) 2 007, 2 019, 5 010 South Africa D odo v State 2001 (3) SA 382 [22]; 2001 (5) BC LR 423 (CC SA) 7 023, 7 027, 7-035 Executive Council o f the W estern Cape Legislature v President o f the R epublic of South Africa 1995 (4) SA 877 (CC SA); (1995) SA C LR 274 (CC S A ) 5-034, 7 014 Ferreira v Levin N O 1996 (1) SA 984 (CC SA); 1996 (1) BCLR 1 .................................5 011 N M , R e (2007) B .H .R .C . 157; [2002] 4 L.R .C. 638 (CC S A ).......................................... 5 007 South A frican Association o f Personal Injuries Lawyers v H eath [2000] Z.A .C.C. 22; 2001 (1) SA 883; [2001] 4 L.R .C. 99 (CC S A ) 7-004, 7-008, 7-011, 7-012, 7 017, 7- 028, 8 004, 8 019 State v Baloyi [1999] ZA C C 19; 2000 (1) BCLR 8 6 ; 2000 (2) SA 425 (CC S A ) 3-025, 9 003 State v M akw anyane [1995] 1 L.R .C. 269 (CC SA )............................................................5 002 State v Z um a [1995] ZA C C 1; 1995 (2) SA 642 (CC SA ).................................................. 3 022 Van Rooyen v State (2002) 14 B.H .R.C. 297; [2003] 1 L.R .C. 533 (CC S A ) 4-017, 8-007, 8 013, 8-039, 8-045, 8 056, 8-067 Uganda M uhwezi v A G [2010] U G C C 3 (CC U g )............................................................................ 7 028 United Kingdom Anisminic L td v Foreign Com pensation Com m ission [1969] 2 A.C. 147 ( H L ) 5-019 BBC v Johns [1965] Ch. 32; [1964] 2 W .L.R. 1071; [1964] 1 All E .R . 923 (CA Eng)... 2 003 Bennett v Horseferry R o a d M agistrates’ C o u rt [1994] 1 A .C. 42 (H L )..........................6-020 Blackburn v A ttorney G eneral [1971] 1 W .L.R . 1037; [1971] 2 All E.R . 1380 (CA Civ D iv)...........................................................................................................................................2 005 Bradlaugh v G ossett (1884) 12 Q.B.D. 271 (Q B D ).............................................................2 013 B u rd ettv A bbott (1811) 14 E ast 1,152 (H L )...................................................................... 2 012 Cam pbell v Hall (1774) 1 Cowp. 204 a t 212; (1774) 98 E.R . 1045; (1774) Lofft 655; (1774) [1558-1774] All E.R . Rep. 252 (K B ) 1 015,1 018 CCSU v M inister for the Civil Service [1985] A.C. 374 (H L ).............................. 5- 019, 6 031 Council o f Civil Service U nions v M inister for the Civil Service [1985] A .C. 374; [1984] 3 All E.R . 935 ( H L ) ..................................................................................................2 003 D PP v H um phrys [1977] A .C. 1 (H L )................................................................................... 7 031 Edinburgh and D alkeith Railw ay Co v W anchope (1842) 8 Cl. & Fin. 710 ( H L ) 4-019

TABLE OF CASES

xxxi

H uang v Secretary o f State [2007] U K H L 11; [2007] 2 A.C. 167 (H L )... 9-023, 9-025 International T ransport R o th G m bH v Secretary o f State [2002] EW CA Civ 158; [2003] Q.B. 728 (CA Civ D iv)............................................................................................9-023 JH Rayner (M incing Lane) L td v D epartm ent o f T rade and Industry [1990] 2 A.C. 418; [1989] 3 W .L .R . 969; [1989] 3 All E.R . 523 (H L)................................................... 2-006 Kleinw ort Benson L td v Lincoln C ounty Council [1999] 2 A.C. 349 (H L )...................6-016 Liversidge v A nderson [1942] A.C. 206 (H L ).......................................................................6-025 M atthews v M inistry o f Defence [2002] E W H C 13 ; [2002] C.P. Rep. 26 (Q B )......... 9-023 M atthews v M inistry o f Defence [2003] U K H L 4; [2003] 1 A.C. 1163(HL) ...6-020, 9-023 Pepper v H art [1993] A.C. 593; [1993] 1 All E.R . 42 (H L )...................................3-011, 3-012 Phillips v Eyre (1870) L.R . 6 Q.B. 1 (Exch)...........................................................................1-018 Pickin v British Railways Board [1974] A.C. 765; [1974] 2 W .L.R . 208; [1974] 1 All E.R. 609 (H L ).........................................................................................................................4-019 Pickstone v Freem an [1989] A.C. 6 6 ; [1988] 3 W .L.R . 265; [1988] 2 All E.R . 803 (H L )..........................................................................................................................................4-029 Poplar Housing and Regeneration C om m unity Association Ltd v D onoghue [2001] EW CA Civ 595; [2001] 4 All E.R. 604 (Q B D )................................................................ 5-006 R (Misick) v Secretary o f State for Foreign and Com m onwealth Affairs [2009] EW H C 1039 (HC); affirmed [2009] EW CA Civ 1549 (CA E n g )................................. 4-006 R (on the application o f Bancoult) v Secretary o f State for Foreign and Com m onwealth Affairs (No.2) [2008] U K H L 61; [2009] A.C. 453; [2008] 4 All E.R. 1055 ( H L ) ............................................................................... 2-003, 2-031, 2-032, 4-006 R v A (No.2) [2001] U K H L 25; [2001] 2 W .L.R . 1546 (H L )................................6-023 R v Hom e Secretary Ex p. Brind [1991] 1 A.C. 696 (H L )......................................7-016 R v Secretary o f State for the H om e D epartm ent Ex p. Fire Brigades U nion [1995] 2 A.C. 513; [1995] 2 W .L.R . 464; [1995] 2 All E.R . 244 (H L )........................ 2-003, 2-004 R v Secretary o f State for the H om e D epartm ent Ex p. N orthum bria Police A uthority [1989] Q.B. 26; [1988] 2 W .L.R. 590; [1988] 1 AH E.R . 556 (CA Civ D iv)..............................................................................................................................2-003, 2-004 Secretary o f State for Education and Science v Tameside M BC [1977] A.C. 1014 (H L )......................................................................................................................................... 6-025 Sirros v M oore [1975] Q.B. 118; [1974] 3 W .L.R. 459; [1974] 3 All E.R . 776 (CA Civ D iv).......................................................................................................................................... 8 065 Somerset v Stewart (1772) 98 E.R. 499; (1772) Loffit 1 (K B )...........................................1-019 Starrs v R uxton (Procurator Fiscal, Linlithgow) 1999 S.C.C.R. 1052, 8 B.H.R.C. 1; [2000] 1 L.R.C. 718 (H C S c o t)........................................................................................ 8-056 Stockdale v H ansard (1839) 9 Ad & E 1; 112 E.R. 1112 (Q B )......................................... 2-012 Tamlin v H annaford [1950] 1 K.B. 18 (CA E ng).................................................................7-037 United States of America Burton v W ilmington Parking A uthority 365 U.S. 715 (1961) (SC U S )....................... 5-007 M arbury v M adison (1803) C ranch 137 (SC U S ) 4-001, 4-002 Moose Lodge N o 107 v Irvis 407 U.S. 163 (1972) (SC U S )............................................. 5-007 Shelley v K raem er 334 U.S. 1 (1948) (SC U S )......................................................................5-007 Trop v Dulles 356 U.S. 8 6 (SC US) at 101............................................................................3-021 Zimbabwe N y am b in i v N ational Social Security A uthority [1996] 1 L.R.C. 64 (SC Z im b)........ 9-023 S v Ncube 1988 (2) SA 702 (SC Z im b )................................................................................. 3-025

x x x ii

TABLE OF CASES

FO R E IG N AND IN TER N A TIO N A L C O U R T S African Court on Human Rights and People’s Rights M tikila v T anzania U nreported June 14,2013 (A frican C ourt on H um an Rights and People’s R ig h ts)...................................................................................................................... 2 035 European Court of Hum an Rights Findlay v U K (1997) 24 E .H .R .R . 221 (E C tH R ) G v Federal R epublic o f G erm any (A pplication 13079/87) (1989) 60 Decisions & Reports 256, 261 ..................................................................................................................... 6-015 H andyside v U K (1976) Series A N o.24 (1976) 1 E .H .R .R . 737; [1976] E C H R 5493/72 (E C tH R ).................................................................................................................... 5-029 Sunday Times v U K (1979 80) 2 E .H .R .R . 245 (E C tH R )............................................... 6-015 Tyrer v U K (1978) 2 E .H .R .R . 1 (E C tH R ).......................................................................... 3 025 European Court of Justice Am m inistrazione delle Finanze dello Stato v Sim m enthal SpA (Case 106/77) [1978] E.C .R. 629; [1978] 3 C .M .L .R . 263 (E C J )........................................................................4-029 C osta v EN EL (Case 6/64) [1964] E .C .R . 585 (E C J)......................................................... 4 029 N V Algemene T ransport- en Expeditie O ndem em ing Van G end en Loos v Nederlandse A d m in istrate D er Belastingen (Case 26/62) [1963] E.C .R. 1; [1963] C .M .L.R . 105 (E C J).............................................................................................................. 4-029 Inter-American Commission of Hum an Rights M aria da Penha v Brazil, Inter-A m erican Com m ission o f H um an Rights Case 12.051, R eport N o. 54/01, O E A /S er.L /V /II.lll Doc. 20 rev., 704 (April 16, 2001)............................................................................................................................. 6-023, 9-003 M ichael Gayle v Jam aica, Inter-A m erican Com m ission o f H um an R ights Case 12.418, R eport N o. 92/05 (O ctober 24, 2005).................................................................10-021 Inter-American Court o f Hum an Rights A tala Rilfo v Chile, Inter-A m erican C ourt o f H um an Rights Series C N o. 239 (February 24, 2012)............................................................................................................... 9-023 A rtavia M urillo (“In V itro Fertilization”) v C osta Rica, Inter-A m erican C ourt of H um an Rights Series C N o. 257 (N ovem ber 28,2012)................................................. 9 024 Boyce v Barbados Judgm ent, Inter-A m erican C ourt o f H um an Rights Series C N o. 169 (N ovem ber 20, 2007)........................................................................................ 3 026,5 023 C haparro Alvarez and L apo Iniguez v E cuador (Prelim inary Objections, M erits, R eparations and Costs), Inter-A m erican C o u rt o f H um an Rights Series C N o. 170 (N ovem ber 21, 2 007).................................................................................................... 9 023 Escher v Brazil, Inter-A m erican C ourt o f H um an Rights Series C N o. 200 (July 6 , 2009).........................................................................................................................................9 023 Kimel v A rgentina (M erits, R eparations and Costs), Inter-A m erican C ourt of H um an Rights Series C N o. 177 (M ay 2, 2008)................................................. 9 023, 9-024 Saram aka People v Surinam e, Inter-A m erican C ourt o f H um an Rights Series C N o. 172 (Novem ber 2 8 ,2 0 0 7 ).................................................................................................... 1 047 T ristan D onosov v Panam a, Inter-A m erican C o u rt o f H um an Rights Series C N o. 193 (January 27, 2 009).................................................................................................. 9 023 Velasquez Rodriguez v H onduras, Inter-A m erican C ourt o f H um an Rights Series C N o. 4 (29 July 1988) 3-025, 5 00 8 ,6 023, 9 003

t a b l e o f l e g is l a t io n

CARIBBEAN STA TES AND TER R ITO R IE S Anguilla 1982 C o n stitution.............................. 9-001 Cap V I.................................... 7-006 s . l .................. 9 -0 0 7 ,9 -0 0 9 ,9 -0 1 6 (a) 6-008 s.3............................................ 9-009 s.5.............................................1-041 s . 6 ............................................ 2-005 (2) 8-009 s.7............................................ 9-009 s.9............................... 7-011,9-009 Cl), ( 2 )................ 6-008,8-010 s .l0 (5 )(a )............................... 9-016 s . l l .......................................... 3-019 (2) 9-025 s. 14(3)....................................9 014 ss.14, 15.................................6-034 s.16...............5 004, 5-009, 5-010, 5-011,5-014, 6-009, 6-011,9-033 .............................9-017 (l)(c) (2 ) ....... ................ 5-016,9-036 (3)....... .............................5-003 (5)....... .............................5-014 (6 ) ....... ................ 5-014, 7-014 s. 17.........................................6-034 s. 18.........................................9-017 s. 19(1)....... ................ 2-008,2-031 (2 ) ....... .............................2-031 (3)....... .............................5-018 s.24............................ 2 0 0 3 ,2 031 ( 1) ....... .............................2-007 ( 2 ) ....... .............................7-002 s.25(l)....... .............................7-002 s-28(l)....... .............................2-031 (2 ) ....................... 2-027,2-031 (3)....... ...2 007, 5-018, 5-020 s.3 3 (l)....... .............................2-031 s. 35(2)....... .............................2-031 s.47.........................................7 001 s.49............„.2 013,4-021 ,7-013 s.56.........................................2-032 s.57............................ 2-003,2-032 s.61............................ 2-013,4-021

1982

ss.62 6 3 ..................................2-003 s.63(2)....................................2-027 s.65........................................ 7-032 (4)....................................7- 032 s . 6 6 ........................................ 7-032 s.6 7 .............................8-032, 8-033 s . 6 8 ........................................ 8 029 (1), ( 2 )............................. 8-029 s.82........................................ 2-013 s.73........................................ 8-009 (3)....................................2-027 s.76........................................ 2 003 C onstitution Order s . 6 ...........................................8-009 (1)....................................4-026 s.47........................................ 4-006

Antigua and Barbuda 1981 C onstitution..,..............8-0 0 9 ,9 001 P re am b le ...............................9-004 para, (a) ..........................1-044 C ap V I I .................................7-006 s . 2 ................ .4-001,4-002,4-026, 5 004 s.3................ .9-006,9-009, 9-016 (a)......... ..5-028, 6-008, 6-023 s.5................ ...........................9 009 s . 6 ................ .......................... 1-041 s.7................ ...........................9-018 (2 )......... ...........................5-022 s.8(3)(a).................................9 016 s.9................ ...........................9-009 s . 1 0 .........................................9-009 s . l l .........................................9-022 s. 12(4)......... .6 0 1 5 ,6 -0 2 5 ,9 025 s. 13(2)......... ..............6-0 1 5 ,9 025 s. 14(3)......... ...........................9-014 s .15............................7-011,9-009 ( 1 ), (8 ).. .6-008,6-011, 8 - 0 1 0 ss.16, 17.................................6-034 s-17(l)(c).... ...........................9-017 s.18..............,4-002, 5-004, 5-009, 5-0 1 0 ,5 011,5-014, 6-009, 9-033 ( 1)......... .......................... 9-009 (2 )......... .2 04 1 ,5 -0 1 6 ,9 -0 3 6 (3)......... .......................... 5-003

x x x iv

TABLE OF LEGISLATION

(5)...................... ............. 5-014 (6 )...................... .5-014, 7 -014 s . 2 0 ........................... .6 -0 3 4 ,9 -0 1 7 s .2 2 ........................... .............2-008 s.25(2)...................... ............. 2-003 s.28 ........................... ............. 2-029 (5)...................... ............. 2-041 s.3 1 (l)(f).................. ............. 2-027 s.41(l)(e).................. ............. 2-024 s.4 6 ........................... ............. 7-001 s.47........................... ............. 8-009 (2)......... 2-029, 4-007, 4-009, 4-013, 8-009 ,.2-029,4-013 (3)...................... (4)...................... ,.2-029,4-013 (5)...................... ,.4-001, 4-007 (a )................ .............. 4-012 (c )................ .............. 4-014 ( 8 )...................... .............. 4-011 s.5 2 ......................................... 2-003 s.5 5 .......................... .............. 2-029 s.56(1)..................... .............. 2-029 s.5 7.......................... .............. 7-013 ( 1) ..................... ..2-013,4-021 s.5 8 (l)..................... ..2-012, 4-021 ss.59, 6 0 .................. .............. 2-003 s.60.......................... .............. 2-007 0 )..................... .............. 2-027 (5)..................... .............. 7-002 s.6 2 .......................... .............. 2 - 0 2 1 s.65(5)..................... .............. 2-003 ss.65, 6 6 .................. .............. 2-003 s. 6 6 .......................... ............10-018 s. 6 9 .......................... ..2 -0 0 3 ,2 -0 2 6 (2 )( a ) ............... ..2-0 0 7 ,2 -0 2 3 (4)..................... .............. 7-002 s.70(2)..................... .............. 2-026 s.7 9 .............. ........... .............. 2-029 s.8 0 (l)..................... .............. 2 007 s.8 4 .......................... .............. 2 003 s.8 7 .......................... .............. 7-033 (6)............... .............. 7-033 (7)..................... .............. 7-033 s. 8 8 ( l ) ..................... .............. 7-031 (5)..................... ...............7-033 s. 9 9 .........................................7-032 0 )..................... ,. 2-025, 7-032 (3)..................... ............... 7-032 (4)—(6 ) ............................ 7-032 ( I D .................................. 7-032 s. 1 0 0 ( 1 ) .................................. 7-032 s .101(2)(c ) ............................. 2-025 s. 103(1), (2)........... ............... 8-029 s. 104....................... ............... 7-032

1969 1971

1971

1972 1976

1976

1982

1984 1987 1994 2004 2007

(1)........................2 02 5 ,7 032 (2 ).................................... ,7-032 s. 105(1)..................................,7 032 s. 119............4-005, 5 004, 5 009, 5 O i l , 5-012, 5 014, 6 009 (4).................................... .5-014 s. 1 2 0 ...................................... .5 003 s. 123...................................... .2-038 ( 4 M 7 ) ............................ .2-041 s. 124 .............2 -0 0 3 ,2 007,5 018 Sch.2 p a ra .2 ............. 2 -005,4-026 High C ourt (C onstitutional Redress) A ct (1969 19) N ew spaper Registration (A m endm ent) A c t......... 9 019, 9-022 New spaper Surety Ordinance (Am endm ent) A c t......... 9-019, 9 022 Public O rder A c t........ 3 -034, 9 019 A ntigua a n d B arbuda Industrial C ourt Act s. 17(4)................................... .7 018 B arbuda Local G overnm ent A ct 1976 (ch.44)............. .2-041 s.3 .......................................... .2 041 s-4(l)...................................... .2 041 Anguilla C onstitution O rd e r....................1-036, 1 039 s.6(3)...................................... .4-006 * s .7 .......................................... .9-018 Civil Service A c t..................... .3 034 Ratification o f Treaties A ct.. .2 005 O m budsm an A c t................... 10-018 C aribbean C om m unity Act (2004-9)...........................,4 -0 2 8 B arbuda L and A ct (ch. 140).. .2 041 s.3.......................................... .2 041 s.5 .......................................... , 2 041 s.7 .......................................... , 2 041 Second Schedule s . l .......... , 2 041

Bahamas 1963 C on stitu tio n ............... 1 037,3 008. 3 010, 9 001 art.73......................................... ..1 037 1969 C o n stitu tio n ............... 1-037,3 008 3 010 1969 Powers & Privileges (Senate and H ouse o f Assembly) A ct (1969 10)........................ ..2-013

TABLE OF LEGISLATION

C o n stitu tio n ............... 3 008, 3-010, 3 -0 1 2 ,3 -0 2 0 ,9 008 Pream ble..................... .1 041, 6-006 Cap V III.................. .............7 006 a rt.2 .............. 4 -0 0 1 ,4 -0 0 2 ,5 004 a rt.4 .......................... ............. 4-026 ( 1 )...................... .............4-026 arts 8 , 9 .................... .............1 045 art. 1 1 ........................ .............9 008 art. 15............9-006,9-009, 9-016 (a)...................... .6-008,6-023 art. 17(2)................... .5 0 2 2,9 -018 art. 18........................ ............. 1-041 art. 19........................ .9-009,9-015 (4)...................... .............5-007 a rt . 2 0 ........................ .7 011,9 009 0 ) , ( 8 ) .............. .6-008, 8 - 0 1 0 art.23(2)................... .............9-025 art.25(2)(a)............. .............9 016 art.2 6 ........................ . 1- 0 4 4 , l 046 (3)...................... .9 -008,9-014 art.2 7 ........................ .............9-009 art.2 8 ...........5 004, 5 -009, 5 010, 5 011, 5 014, 6-009, 9 033 (2 )...................... .5 -0 1 6 ,9 036 (3)...................... .............5 003 (5)...................... ............. 5-014 a rt.2 9 ........................ .6 -0 3 4 ,9 017 a rt.30 ...........1-046,2 005, 5 023, 9 008,9-018 ( l) (b ) ,( c ) ......... .............5 -023 a rt.3 2 ......................................2 008 art.34(2).................................2 003 a rt.3 9 ....................... ..............2-029 (2 ) ...................... ..............2 027 (3), ( 4 ) .............. ..............2 023 a rt.4 0 ....................... .2- 029, 3-012 a rt.4 3 (l)(g ).............,2 027, 5-033 a rt.4 5 (l)(a )...........................5 033 a rt.4 6 ....................... ..............3 008 art. 50(1).................................2 015 art. 52 ....................... ..............7 001 a rt.5 3 (l)...................,2 013,4-021 art. 54(2).................................4-007 (b)................ ,2 028,4-009, 4-013,4-014 ..4-001,4-007 (3)...................... (d)................ .4-009,4-013 (5)...................... ..............4-010 a rt.5 5 ....................... ..............7 013 ( 1 )...................... ,2 -0 1 3 ,4 -0 2 1 a rt.6 2 (l).................................2-029 a rt.6 3 ....................... ..............2 003

2001

XXXV

a rt . 6 6 ........................ ............2 007 (2 )....................... ............2-027 a rt .6 8 ......................... ........... 2 0 2 1 art.69(2)(d).............. ............2 023 art.70(8).................... ............2 003 art. 72(2).................... ............2-026 art.7 3 ........................ 2-003, 2 026 ( l) ( a ) .................. 2-007, 2-023 (2 ) ....................... ............7 002 art.7 4 ......................... ............7-002 art.7 9 (l).................... ............2-007 (4)...........2-003, 2- 007, 5 018 a rt.8 2 (l).................... ............2 023 a rt.9 0 ........................ art.93(3).................... ............ 8 045 a rt.9 4 (l).................... 2 023, 8-024 (2 )....................... ............ 8 026 a rt.9 6 ........................ ............ 8 046 (1)...........2 023, 8-045, 8-046 (2 ) ....................... 8-045,8 046 (4)....................... ............ 8 049 (5)....................... ............ 8 050 (6)....................... .............8 050 (7)....................... ............ 8 048 art.98(2)................................ 8 045 a rt.9 9 (l)....... 2 023, 8-024, 8 026 art. 1 0 2 ( 1) ................. ............ 2-023 (6)....................... .............8 050 art. 107...................... ............ 7-032 (1)...........2 -0 2 3 ,2 -0 2 5 ,7 - 032 (3)....................... .............7 032 (6)....................... ............ 7 032 art. 108...................... .............7-032 art. I l l ...................... .............2 025 art. 116...................... .8 032, 8 034 (2)...........2-023, 2 025, 8 -033 art. 117(1), (2).......... .............8 029 art.1 1 8 ...................................7 032 ( 1 )....................... .2 023,7 032 (3)....................... .............7-032 a rt.l 19(1)................. .............2-023 art. 125(4).....2 004,5-018, 5 019 art. 126......................,7 032,8-034 art. 135(2)................. ............. 8 060 (3)....................... ............. 8 058 Powers and Privileges Act (Cap 8 ) s.4 ........................................... 2 0 1 2

Barbados Parliam ent (Privileges, Imm unities and Powers) Act (Cap 9 ) ......... .............2 013 s.4............................. .............2 012 1966 C onstitution.... 1-042, 9 001,9 008

xxxvi

TABLE OF LEGISLATION

P re am b le .................. 1-042, 6-006 Cap VIII................................ 7-006 s . l ..................4-001,4-002, 5-004 s.4............. ............................. 4-026 s . l l ........... ...9-006, 9-008, 9-009, 9-016 (a)....................... 6-008,6-023 s.13........... ............................. 9-009 (4)...... ............................. 5-007 (5)...... .................6-034,9-017 (6 )...... ............................. 9-017 s. 14........... ............................. 1-041 8.15(1)...... ............................. 3-025 (2 )...... .................5-022,9-018 (3)...... ..5-036, 9-014,10-017 s.16........... ............................. 5-028 ( 1 )...... ............................. 9-009 s. 17(2)...... ............................. 9-024 s.18........... ....6 -0 2 8 ,7 -0 1 1 ,9 009 ( 1) ...... .................6-008,8-010 ( 2 ) ( c ) ..................7-030,9-003 (4)...... ............................. 6-014 (8 ) ...... ................ 6-008, 8 - 0 1 0 s.22(3)(a).............................. 9-016 s.23........... .................1-044,1-046 (2 )...... .................9-008,9-014 (3)(d). ............................. 6-034 s.24........... ...5-004, 5-009, 5-010, 5 -0 1 1 ,5 -0 1 4 ,6 -0 0 9 , 6-032, 9-033 .................5-016,9-036 (2 ) ...... (3)...... ............................. 5-003 ( 6 ) ...... ............................. 5-014 s.25........... .................6-034, 9-017 s.26........... ...1-046,2-005, 5-023, 9-008, 9-018 (l)(b), (c)....................... 5-023 s.2 8 ........... ............................. 2-008 s. 30(2)...... ............................. 2-003 s.32(l)...... ............................. 2-007 (5)...... ....2 -0 0 3 ,2 -0 0 7 ,5 -0 1 8 s.36........... ............................. 2-029 (2 )...... ............................. 2-027 (3)...... ............................. 2 023 s.39(l)(f).. ............................. 2-027 s.41A(3)... ............................. 2-023 s.41D(7)... ............................. 2-003 s.41E(l) .................................2-004 s.48.........................................7-001 (2 )...... .................2-013,4-021 s.49(2)....................... 2-028,4-013 (a)...............................4-001 (4)...... ..............................4-009 (6 ) ...... ..............................4-010

1975 2003

s.5 0 ............................ ............7 013 ( 1) ....................... 2-013,4-021 s. 5 6 ............................ ............2-029 s.5 7 (l)....................... ............2-029 s.58 ............................ ............ 2 003 (3)....................... ............2-008 ss.60, 6 1 .................................2-003 s.61............................ ............ 2-007 (2 ) ....................... .2-027,7 002 s.6 4 (l)....................... .............2 026 s.65............................ .............2-003 ( 1) ....................... .............2-007 ( 2 )....................... ,2-026, 7-002 s.74(l), ( 2 ) ............... .............2 023 s.77 ............................,5 018,5-019 (4)....................... ,2-004, 6-032 s.7 8 (l)....................... .............2 003 s.79(2)....................... .............7 031 (5)....................... .............7 033 s.79D(3).................................4-028 s.80(3)....................... ............. 8 045 s.8 1 (l)...........2 0 2 3 ,8 024,8-030 s.84(1)....................... ............. 8 045 (1A )................................. 8 046 (2 ) ....................... .8 -0 4 5 ,8 046 (3)....................... ............. 8 049 (5)....................... ............. 8 050 (a )................. ............. 8 050 s.89............................ .8 032,8-033 ( i) (b ) ................. .............8-033 (2)...........2 023, 2-025, 8 033 (4)....................... .............8-034 s.90.........................................7-032 ( 1 )....................... .2 -025,7-032 (3)....................... .............7-032 s.91........................... .............7-032 (1)...........2-023, 2-025, 7-032 (3)...................... .............7-032 s.93(l), ( 2 ) .............. .............8-029 ss.94,96.................... .............7 032 s.9 8 A (l)................... ............. 2-023 s. 1 0 0 ......................... .............2 025 s . 1 0 1 ......................... ............. 7 033 (4)...................... .............7 033 s. 105............. 7 0 3 2 ,7 -0 3 3 ,8 -0 3 4 s. 106......................... .5 -0 1 8 ,5 019 s.l 1292)................... ............. 8 060 (3)...................... ............. 8 058 S.112A..................... ............. 5 028 s. 117(1).................... .............7 016 Supreme C ourt C onstitution (Redress Rules).. ............. 5 014 C aribbean Com m unity Act (2003-8)............... .............4-028

TABLE OF LEGISLATION

Belize

1858 1963 1981 1981

Im perial Laws (Extension) A ct (Cap 2 ) ........ ............. 2-013 Supreme C ourt o f Judicature A c t........................ ............. 7-021 s. 105......................... .7-024, 7-025 s. 106(A)................... .7-024, 7-025 Alcalde Jurisdiction Act 1858..................... ............. 1 - 0 2 0 British H onduras C onstitution O rdinance. 1-037 C onstitution O rder in C o uncil............... .............1-037 Belize C onstitution Act (1981-14)............ 3-019, 4-026, 9-001, 10-013 Pream ble ............... 3-019,4-028, 6-006, 9 004 para.(e)............. .1 005,1 041 Cap V III.................. .............7 006 s. 1 (2 )........................ .............1 007 s.2 ..................4-001,4-002, 5 004 s.3............................. 3-019, 9 007, 9-009, 9 016 (a)...................... .6-008, 6-023 (c)...................... .............9 009 s.4 ............................. .............3-019 s. 5(6)......................... .............5-007 s . 6 ............................. .7 011,9 009 ( 1 )...................... .............9-008 (2 ) ...........6 -0 0 8 ,6 0 1 1 , 8 - 0 1 0 (7)......... 6-0 0 8 ,6 -0 1 1 ,8 -0 1 0 , 8 045 .............8-053 ( 8 )...................... s.7 ............................. .............9-009 s . 8 ............................. .............1-041 s-11 (5 )(a )................ .............9 016 s.14........................... ............. 9-009 s.16........................... ............. 3-019 (2 ) ...................... .............5-007 (3)...................... .............9 014 s.17(1)...................... .............9 009 s.18........................... .6 -0 3 4 ,9 017 ( 10 ) .................... .............6-034 ,»s.l9........................... ............. 6-034 ( 1)...................... ..............9-017 s.20 .............. 5-004, 5-009,5 -010, 5 011,5014, 6-009, 9-033 ( 1)...................... .............9-009 (3)...................... ............. 5-003 (8 )...................... .5 -0 1 4 ,7 -0 1 4 s . 2 1 ........................... .5 023,9-008 s.3 0 ........................... .............2-008

x x x v ii

s. 33(2)........ ...........................2-003 s.34(1)........ ...........................2 007 (4)........ ..2-003, 2 007, 5-018 s.37(l)........ ...........................2-007 (2 )........ ...........................2-023 (4)........ ...........................7-002 s.4 0 ............. .............. 2 -0 0 3 ,2 026 (2 ) ........ ...........................7-002 s.42(2)........ ...........................7-025 s.47(2)........ ...........................2-023 s.50(2)........ ...........................7-031 (6 )........ .............. 7-025,7-033 s.52............. ...........................2-003 s.54(1)........ ...........................8-053 (2 )........ ...........................2-023 0 8 ) ...... .............. 5-018, 5-019 8.59(1X0-.- ........................ 10-013 s.61............. .......................... 2-029 (3)(a)... ...........................2-023 (4)........ ......... 10-014,10-018 (a)... ...........................2 027 s.61A(2)..... ........................ 10-014 (a)... ...........................2-005 s.64(l)(e).... ...........................2 027 s . 6 8 ............. ...........................7-001 s.69(2)........ ...........................4-009 (3)........ ..4 -0 0 9 ,4 -0 1 3 ,4 -0 2 2 (4)........ ..............4-001,4-013 (5)........ ...........................4-012 (6 ) ........ ...........................4-011 s.70............. ...........................7-013 ( 1) ........ .............. 2-013,4-021 s.74............. ..2-012,2-013,4-021 s.79............. ...........................2-029 s.80(1)........ ...........................2-029 s.81............. ...........................2-003 (2 )........ ...........................2-008 ss.83-84..... ...........................2-003 s.84(4)........ ...........................2-027 s.8 8 (2 ) ........ ...........................2-023 s.8 9 ............. ........................... 2 - 0 2 1 s.93............. ........................... 8 - 0 0 1 s.93A ......... ............8-067, 10-016 (3), (4). ............8-067,10-016 s.95(2)........ s.97(l)........ .............2-023, 8-024, 8-030 ..............2-023,8 026 (2 ) ........ (3)........ ..............8-043,8 053 s.98(l)........ .............. 8 045,8-046 (b)... ...........................2-023 (2 )........ .............. 8-045, 8 - 046 (4)........ ..8-049, 8-050, 8 051 s. 1 0 0 (2 ) ...... ........................... 8 045

x x x v iii

1982

1985

1988

2000 2001

2001

2004 2005

2008

TABLE OF LEGISLATION

s. 101(1)........2 -0 2 3 ,8 024,8 030, 8 045 (4 ).....................................2-023 s. 102....................................... 8-045 ( 1)..................................... 8 026 (3).....................................8-051 s. 105....................................... 7-032 (2) 2 -0 2 3 ,2 -0 2 5 ,7 032 (5 ).....................................7-032 (6 ) - ( 8 ) ............................ 7-032 (12).................................. 7-032 s. 106(1).................................. 7-032 s.107(1).................................. 2-025 s. 108.......................................7-033 (1 ) 2-023, 7-025, 7-033 (6 ).................................... 7-033 s. 109.......................................2 023 s .llO E ...................... 8-032, 10 016 (2 ).................................... 8 033 (5 ).................................... 8-034 ( 6 ).................................... 8-034 s.llO F (l), (2 ).........................8-029 s. 118(2)..................................8-060 (3) .................................... 8-058 s.127.......................................5 018 s. 129(2)..................................8-030 s. 134.......................... 2 0 0 5 ,4 026 (1).................................... 4-026 S c h .l...................................... 1 007 Supreme C ourt (C onstitutional Redress) A ct (1982 32).. 5-014 Belize C onstitution (First A m endm ent) Act (1985- 14)........................ 1 0 - 0 0 2 Belize C onstitution (Second Am endm ent) Act (1988 2 6 )....................... 1 0 - 0 0 2 C ontractor-G eneral Act (c.6 ).................................. 1 0 - 0 2 1 Belize C onstitution (Third A m endm ent) Act (2 0 0 1 2 ) .......................... 10 0 0 2 Belize C onstitution (F ourth Am endm ent) Act (2001 3 9 )....................... 1 0 - 0 0 2 C aribbean C om m unity A ct (2004-17)........................ 4-028 Belize C onstitution (Fifth Am endm ent) Act (2005 2 3 )....................... 1 0 - 0 0 2 Belize C onstitution (Sixth Am endm ent) A c t.......... 4-022, 8 045

2008

2010

2011 2011

Belize C onstitution (Sixth A m endm ent) Act tzuua ............. ..........1 U-UUZ Belize C onstitution (Seventh A m endm ent) Act (2010—4 )............... .......... 1 0 0 0 2 Belize C onstitution (Eighth A m endm ent) Bill ............4-022 Belize C onstitution (Eighth A m endm ent) Act (2 0 1 1 - 11 ) ............. 10 0 0 2

Bermuda 1967 Berm uda C onstitution A ct.... 1-039 1968 Berm uda C onstitution O rder s . 2 .............................. .............4-006 s.3 4 .........................................4-006 s. 51(2)....................... .............4-026 1968 C onstitution.... 1 039,9 00 1 ,9 008 s . l ................ 3 -0 1 8 ,9 -0 0 7 ,9 008, 9 009, 9 016 ............. 6 008 (a)....................... s.5 .............................. .2-005, 9-009 s . 6 .............................. .7 011,9-009 ( 1), (8 ) ............... .6 008, 8 - 0 1 0 s.9(2)......................... .............9 025 s . l l ......................................... 3-018 (2 )(a )................. ............. 9-016 (d)................. ............. 3-018 (5)....................... ............. 3 024 (d)................ ............. 3 018 s. 12(3)...................... .9 008, 9 014 s .13(1)...................... ............. 9-009 s.1 4 ........................... .6-034, 9-017 (7)(a)................. ............. 9 017 s. 15.............. 5 004,5 009,5 010, 5 011,5 014,6-009, 9-033 ( 1 )...................... ............. 9 009 (2 )...................... .5 -0 1 6 ,9 036 (6 )...................... ............. 5-014 s. 16(3)...................... ............. 5 003 s-17(1)...................... .2 008,2 031 (2 ) ...................... .2 031,5 018 s .l9 A (l) ................... .............2 007 s.2 1 (6 ) ...................... .2 007,5 018 s.2 2 ........................... ............. 2-003 s.34........................... ............. 7 001 s.3 5 ........................... ............. 2-003 ( 1) ...................... ............. 2-032 s.45........................... 2-013 ,7 -0 1 3 s.46........................... ............. 2-013 s.47........................... ............. 2 032 ss.48, 4 9 ................... ............. 2-003

TABLE OF LEGISLATION

1981 1997 2001

2003

2004

s.4 9 (l).................................... 2-027 (2 ).................................... 2-031 s.52(3).................. ..................4-006 s.57(l), ( 2 ) ......... .................. 2-031 s.58...................... ..................2 003 ( 1) ....................... 2-007,2-031 (2 ).................................... 7-002 s.59(1).................................... 7 0 0 2 s.6 2 ...................... .................. 2-031 s.73(2)................. .................. 8 045 (3).................................... 8-024 (4)................. .................. 8-026 s.7 4 (l)....................... 8-045,8 046 (2 )................. .................. 8 049 (4)................. .................. 8-050 s.77(2)................. .................. 8 045 (3)................. ..... 8-024, 8-026 s.78(4)................. .................. 8 050 s.81...................... .................. 7 032 (2 )................. .................. 7-032 (6)................. .................. 7-032 ss.81 4 ................ .................. 7-006 s.82...................... .................. 7-032 s.87...................... .................. 7-032 s.89(l), ( 2 ) ......... .................. 8-029 s.93A ...................................10-018 s. 1 0 0 (2 ) ............... .................. 8-060 (3)................. .................. 8-058 s. 104(1)............... .................. 5-003 H um an Rights Act ............... 10-018 s. 14(a)................. ................ 10 018 Prohibited R estaurants Act... 5-029 Bermuda C onstitution (Am endm ent) O rd e r.....2-030, 10-006 Bermuda C onstitution (Am endm ent) O rd e r.....2 030, 10 006 Bermuda O m budsm an Act.. 10-018

British Virgin islands 2007 C onstitution .......... ...8-009, 10 002, 10 006 P re am b le .............................. 9-011 Ch. 7 ........................ .................. 7 006 C h . 8 ..................... . 1 0 006, 10 0 2 1 s.3.....5 004,5 009,5-010,5-011 £.9........................ ..... 9-014,9-016 (a)................. .................. 6 008 s .13...................... ..................9-009 s. 14 ........................................... 1-041 s.16...................... .................... 7-011 (1), (9) ...6-008, 6-011,8 010 8.17 ............................................. 6 034

xxxix

s,18(2)(a)... ...........................9 016 s . 2 2 ............. ...........................9 011 s.26(a)........ ...........................9 014 s.27 ............. ..............6 -0 3 4 ,9 017 s.2 8 ............. ..............6-034, 9 017 s.2 9 (l)........ ............................. 9 01 s.30 ............. ...........................9 014 s.3 1 ............. ..5-014,6 009,9 033 (2 )........ .............. 5 016, 9 036 (6 )........ ...........................5 003 ( 10 ) ...... ...........................5 014 s.35(l)........ .............. 2-008,2-031 (2 )........ .............. 2-031, 5 018 s.36 ............. ........................ 10 018 s.38(l)........ ...........................2 007 s.40(6)........ ...........................5 018 s.43............. ...........................2 003 s.47(2)........ ...........................4 006 (3)........ ...........................2 031 s.49(l)........ ...........................2 031 s.52 ............. ...........................2 003 (1)........ ..............2 -0 0 7 ,2 031 (2 )........ ...........................7 002 s.53 ............. ...........................7 002 s.57............. ...........................2 031 s.59(1)........ ...........................7 031 (5)........ ...........................7 033 s.60 ............. ...........................2 031 s.63(l)........ ...........................2 031 s.71............. ...........................7 001 s.7 2 ............. ...........................7 013 s.7 4 ............. ........................... 8 045 s.77(3)........ ........................... 8 045 s.7 9 ............. ...........................2 003 ( 1 ), (2 ) . ...........................2 032 s.80 ............. ...........................2 032 s.81 ............. ...........................2 032 s.82 ............. ...........................2 013 s.84............. ...........................2 003 (2 )........ ...........................2 027 (3)........ ...........................2 031 s.89 ............. ........................... 8 009 s.90 ............. ........................... 8 0 0 1 s.91 ............. ...........................7 032 (4)........ ...........................7 032 s.92 ............. ...........................7 032 s.93.........................................7 032 (2 )......... ...........................7-032 s.9 4 ............. ........................... 8 032 (1)........ ........................... 8 033 (4).................................... 8 034 (d)... .............................. 8 034 (7)(a) ... ..............................7 032 s .9 5 (l),(3 ). ..............................8 029

xl

2007

TABLE OF LEGISLA1 ION

s.9 6 .............................7-032, 7-033 (2) ......................................7-032 s.97 .......................................... 7-032 s. 115........................................4-006 s. 119........................................2-032 C onstitution O rder s.7 2 .......................................... 4-006 s .115(1)................................... 4-026 (3)......................................4-006

Cayman Islands 2009 C on stitu tio n ............... 4-024, 8 - 008, 9-001, 9 014, 10-002, 10-006 P re am b le ................................. 9 011 P tV I I I 10 021 s . l .............................................9-016 s.3 .............................................. 9 009 s.4 ............................................. 1-041 s.7 .............................................. 7 011 ( 1) 6 008, 6 - 0 1 1 , 8 0 1 0 (3 ) ....................................... 2 031 s.l3 (2 )(a )................................9-016 s.l5 (2 )(a )................................. 9 016 s. 17.......................................... 9-011 s.18............................................9 014 s. 19(1), ( 2 ) ............................. 6-024 s.20(2)........................9-011,9-017 s.21.......................................... 9-017 ss.2 1 ,2 2 .................................. 6-034 s.22(l)(c).................................. 9 017 s.23............................ 4-024, 5-036 (2), ( 3 )............................. 4-024 s.26 .............. 5-0 04,5-009, 5-010, 5 -0 1 1 ,9 033 (2) 5-003 s.28(l), ( 4 ) ............................10-021 s.29............................ 2 -0 0 8 ,2 031 (2 ) 1 0 -0 2 1 s.31(1), ( 2 ) ............................. 2-031 (4 )....................... 2 007, 5 018 s.32( 1), (2), ( 5 ) .... .................2 007 s.39........................ .................2-003 s.44........................ .................4-006 ( l) (b ) ............. .................7-002 (3)................... .................2-031 s.4 6 (l)................... .................2-031 s.49....................... ....2 003,2-031 (2 )................... .................2-007 s.51(1)................... .................7-002 s.5 5 ........................ .................2 031 s.57(2)................... .................7-031 (6 )................... .................7-033 s.58........................ .................2 031

s.59(2)...................................... 7 001 s.60.......................................... 4-006 ( l) ( c ) ................................ 2 031 s.71........................................... 7 013 s.72......................................... 10 021 s.73......................................... 10 021 s.78 2 -0 0 3 ,2 032 s.80........................................... 2 032 s.81...........................................2 032 s.82........................................... 2 013 s.84(2)...................................... 2 027 s.92(2)...................................... 8 049 s.9 5 (l)...................................... 8 045 (3)...................................... 8 026 (5) 8 058,8-060 (7 )(a) 8 062 s.9 6 (l) 8-0 4 5 ,8 046 (3), ( 4 ) .............................. 8 050 s.97 ........................................ 10-021 s. 100(2).................................... 8 045 s. 101 (3), (4)............................. 8 050 s. 104.........................................8 001 s. 105 8 032,8-034, 10 021 (1) 8-033, 10 016 (3)...................................... 8 034 (d) 8 034 s. 106........................................ 7 033 (1) 8 024, 8 029, 8 048 (4)..................................... 8-029 (9)...................................... 8 052 ( 1 0 ).................................... 8 066 s. 107.........................................8 008 s.l 16...................................... 10-018 (3).................................... 10 018 s. 125........................................ 2 032 C onstitution O rder s.5(1)........................................4-026 (3) 4-006 s.59(2)..................................... 4-006 Dominica 1978 C onstitution.. ........................... 9-001 P re am b le ... .............. 6-006, 9 004 Cap V I....... ........................... 7 006 s . l ............... ..9 007,9 009,9 016 (a)........ .............. 6-008.6-023 s.3............... ........................... 9 009 (6 )........ ........................... 5 007 s-4(l)........... ........................... 1 041 s . 6 ............... ........................... 9 009 s . 8 ............... ........................... 9 009 ( 1 ) , ( 8 ) . ..6 -0 0 8 ,6 -0 1 1 ,8 0 1 0 s.9 ............... ........................... 9-022 s.l2 (3 )(a )... ........................... 9 016

TABLE OF LEGISLATION S. 13(2)........ ........................... 5-007

(3)........ ...........................9-014 ss.1 4 ,15..... ........................... 6 034 s. 15(l)(c) — ...........................9-017 s. 16 ............. 5 004,5 009,5 010, 5 011, 5-014, 6-009 ................ 5-016,9-036 (2 ) ......... (3)......... .............................. 5-003 (5) ......... .............................. 5-014 ( 6 ) ......... ................5-014, 7-014 s.17 ............. .............................. 9-017 (2)......... ...........................6-034 s. 18(2)........ ...........................2-006 s.19............. .............. 2 -0 2 3 ,5 032 (D-(3) •...........................5-032 s.22(5)........ .............................. 5-032 s. 32(4) ......... .............................. 2 - 0 1 1 s-34(l)(b) ... .............................. 2-023 s. 35(2) ......... .............................. 2-027 s. 39(4) ......... .............................. 5-032 s.40 .............. ............................5 032 s.41 ............. ...........................7-001 s.42 ............. .................4-018, 8-009 (2)......... .4-001,4-007, 4-009, 4-013 ................. 4-007, 4-012 (3)......... (b).................................. 4-014 ( 8 ) ......... ............................... 4-011 s.4 3 .............. ...2 012,2-013,4-021 s. 5 2 .............. .2-013,4-021 ,7 013 s.54 .............. ............................... 2-007 (4)......... ............................... 2 027 s.56(2), ( 3 ) ,............................... 2-023 s. 57(7) ........................................ 2 003 s.5 9 .............. ................. 2 00 3 ,2 026 (2)......... ............................... 2-007 (4)......... ............................... 7-002 (6 ) ......... ............................... 7-002 s.6 6 (2 ) ......... ............................... 2-023 s.72(2) ........................................ 7-031 (6 )......... ............................... 7-033 s.73 .............. ............................... 2-003 ss.83, 8 4 .................................... 2-003 s . 8 4 .............. ............................... 7-032 ( 1) ......... ...2-023, 2-025, 7-032 (3)......... ............................... 7-032 (4)......... ............................... 7-032 ( 5 M 7 ) ,............................... 7-032 ( 12 ) ...... ............................... 7-032 s.85 .............. ............................... 7 032 s. 8 6 ( 1) ........................................ 2 025 s . 8 8 .............. ............................... 7-033 (6 ) ......... ...............................7-033 (7) ......... ............................... 7-033

1974

1981

2005 2005

xli

s.90(3).................................... 8 029 s.91.........................................7-032 (1)...........2 023, 2-025, 7-032 (2).................................... 7-032 s.9 2 (l).................................... 2-023 (2).................................... 7-032 s. 103 ............. 5-004, 5-009, 5-011, 5 012,5 014, 6 009 (1) ........................................ 4-005 (4) ........................................ 5-014 s. 104(1)..................................5-003 s. 105.......................................4 018 s.106...................................... 4-018 s. 108(2) ..................................... 2-023 s. 117 .............. 4-001,4-002, 5-004 s.l 18(3) ......... 2 -0 0 3 ,2 -0 0 7 ,5 018 S c h .l ........................................... 4-018 Sch.2 p a ra .2 ..... ....................... 4-026 Prohibited and Unlawful Societies and A ssociations A c t............. 6 004 ss.5, 6 ......................................... 6-004 s. 10(2), ( 3 ) ............................... 6-004 Prevention o f Terrorism (Tem porary Provisions) A ct (1981-10) ....................6-004 C aribbean Com m unity A ct (2005-22) .............................4-028 C aribbean C ourt o f Justice (Original Jurisdiction) A ct (2005 -23) s . l l ............................................. 4-028

Grenada C aribbean C ourt o f Justice A ct (Cap 39D) s . l l ............................................. 4-028 1973 C o n stitution ................. 3-005, 3-015, 9 0 0 1,9 008 Pream ble .................. 6 -0 0 6 ,9 004 p a ra .(d ) .............................1 041 C ap V I ....................................... 7 006 s . l ..... 4 -0 2 6 ,9 006, 9 009, 9 016 (a) .......................... 6 -0 0 8 ,6 023 ( d ) ....................................... 9 009 s.3 ................................................ 9 009 ( 6 ) ........................................ 5 007 s.4 (l) ........................................... 1 041 s.5(2).............................5 0 2 2,9 018 s.6 ( l) ........................................... 9 009 s . 8 ................................................ 9 009 ( 1), ( 8 ) ...6-008, 6 - 0 1 1 , 8 0 1 0 s.9 ................................................ 9 022

TABLE OF LEGISLATION

s. 1 0 (2 ) ........ ........................... 9-025 s.l2 (3 )(a )... ........................... 9-016 8.13(3)........ ........................... 9-014 ss.14, 15..... ........................... 6-034 s.15(1)(c).... ........................... 9-017 s.16............. .5-004, 5-009, 5 010, 5 0 1 1 ,5 -0 1 4 ,6 -0 0 9 , 9-033 (2 )........ .............. 5 016, 9-036 (3)........ ........................... 5-003 (5)........ ........................... 5 014 (6 )........ .............. 5-014,7-014 s .17............. .............. 6-034,9-017 s.19 ............. ........................... 2-008 s.2 2 (2 ) ........ ........................... 2-003 s.24 ............. .............. 2 -0 1 1 ,2 029 (2 ) (a ) ... ........................... 2-027 (b)... ........................... 2-023 s.27(2)(e).... ........................... 2 027 s.32 ............. ........................... 2 - 0 2 1 s.38............. ........................... 4-018 s.39............. ........................... 8-009 ( 2 )........ ..4 -0 0 1 ,4 -0 0 7 ,4 -0 0 9 (3)........ ........................... 4-001 (4)........ ........................... 4-001 (5)........ ............................4-007 (a)... ........................... 4-012 (c)...............................4-014 ( 8 )........ ............................4-011 s.45 .........................................2 003 s.48.........................................2-029 s.4 9 (l)........ ............................2 029 s.5 0 .........................................7-013 ( 1)........ ............... 2-013,4-021 (3)........ ............... 2-013,4-021 ss.51, 5 2 .................................2-003 s.52.........................................2-007 (4)........ ............... 2- 027, 7-002 s.55(1)....................................2-023 s. 56(7).................................... 2 003 s. 57(2).................................... 2-007 s.58............ ............... 2-003,2-026 (4).................................... 7-002 s.62(1)....... ............................ 2-007 s. 6 6 (2 ) ....... ............................ 2-023 s.71(2)....... ............................ 7 031 (6 )....... ............................ 7-033 s.72............ ............................ 2-003 s.8 3 ............ ............................ 7 032 ( 1) ....... ............... 2 -025,7-032 (3)....... ............................ 7-032 (4)....... ............................ 7-032 (5M 7) ............................ 7-032 ( 1 2 ) ..... ............................ 7-032

1959 1968

2006

ss.84, 8 9 ................................. 7-032 s . 8 6 ......................................... 7-033 (5).................................... 7 033 ( 6 ) .................................... 7-033 s.8 8 (l), (2 ) ............................ 8 029 s.98......................................... .4-018 s.99......................................... .4-018 s.101 ............4-005, 5-004, 5-011, 5-014,6-009 (4).................................... .5-014 s. 102..........................5-003,5-009 s.106............. 4-001,4-002, 5-004 s. 108............2 003,2-007, 2-012, 5 018 S c h .l...................................... .4-018 Sch.2 para. 1.............2 005, 4-026 Crow n Proceedings Act (c.74)................................. .2 005 Legislature (Privileges, Imm unities and Powers) Act (Cap 168) (1968 2 4 )......................... .2 013 s.4 .......................................... . 2 - 0 1 2 Revised Treaty o f C haguaram as Act (2006-10).............4-028, 6 037 art.2 1 4 .................................. . 6 037

Guyana

1917 1928 1953 1961 1961 1962

1966 1966 1967 1970

1980

R epresentation o f the People A ct (Cap 1:03) s . l l A .................................... .2-035 s .llB (5 )-(6 )......................... .2 035 Civil Law C ap 6:01, s.2 2 ..................... . 2 006 C o n stitu tio n ............................ .1 030 British G uiana C onstitution.. 1 030 s.43........................................ .1 030 Bill o f R ig h ts.......................... 10 015 C olonial C o n stitu tio n ........... .9 001 N ational Development Savings Levy O rdinance........................ .4 -0 2 4 C onstitution... 1-011, 1-038,2-034, 2 0 3 5,9 012 G uyana Independence O rd e r.................... 1 011 ,2 034 G uyana O m budsm an A c t ... 10 018 Republic A c t .......................... 1-038 C ap 1:02, s.4............................ ?, 006 s . 8 .......................................... .1 038 C onstitution... 1-011, 2-034, 2 036, 2-038, 3-004, 8-008, 9-001

TABLE OF LEGISLATION

P ream b le................ .1-041, 9 Oil C ap 1:01,8.182...... .............2-003 Title 1 ...................... ...........10-015 Ch I I ................ .............9-012 Title 1 A ................... .............9-012 Title 7 ...................... ............. 7-006 Pt 1 Chs II, I I I ....... .............9-001 Pt 2 Title 1.............. .9 -0 0 1 ,9 -0 1 2 a r t . l .......................... .............4-012 a rt . 2 .......................... . 1-007, 4-012 a rt.3 .......................... .............2-034 a rt.7 .......................... .............4-026 a rt .8 ..4-001,4-002,4-012, 5-004 a rt.9 .......................... .4-012, 5- 035 arts 9 3 9 .................. ............. 9-012 art. 18....................... .............4-012 a rt . 2 0 ........................ .............9-017 arts 23 2 7 ............... .............9 0 1 2 a rt.2 5 ....................... .............9-011 a rt.2 7 (l)................... .............9 O il a rt.33....................... .............9 012 a rt.3 4 ....................... .............9-011 a rt.3 5 ....................... .............2-036 a rt.3 6 ....................... .9 011,9-014 a rt.3 8 B .................... .............9-012 a rt.3 8 D .................... .............9 012 a rt.3 9 (l)................... .............9-012 (2 ) ...................... 4-028, 7-016, 9-011,9-012 (4)...................... .............3-027 a rt.4 0 ....................... .............9-016 a rt.5 1 ....................... .2-035, 4-012 a rt.5 2 ....................... .............2-029 art. 60(2)................... .............2-035 (4)...................... ..............2-038 a rt.6 5 ....................... ..............7 001 art. 6 6 ....................... .............4-012 a rt.6 7 (l)-(2 ).......... ..............2 036 a rt . 6 8 ....................... ..............4-012 arts 69, 7 0 ............... ..............2-003 a rt.7 0 ....................... .2 007,2 036 (2 ) ...................... ..............2-036 a rt.73(5).................................1-037 a rt.7 9 ....................... ..............2 038 art. 82....................... ..............2 038 a rt.8 9 ....................... ..............2-036 art.90(2).................................2-036 arts 91...................... ..............2 036 arts 93, 9 4 .............................2-036 a rt.9 9 ....................... , 2 036,4-012 ( 1) ...................... ..............2-034 ( 2 ).....'................ ..............7 D37 art. 1 0 0 ...................................2-036 arts 1 0 1 , 1 0 2 .......... ..............2 003

x liii

arts 101-103........... .............2-036 art. 103(2), (3)......... ............. 7-002 art. 105..................... ............. 2 036 art. 106..................... .............2-036 ( 1)...................... ............. 2-036 (2 )...................... ............. 2-036 (6 )...........2-035, 2-037, 7-002 art. I l l ..................... .2 036,4-012 ( 1) ...................... .............2-036 a rt.l 19(6)................ .............5-019 art. 1 2 1 ..................... ............. 2-003 a rt.l2 2 A ......8-001, 8-008, 8-031 ( 1)...................... ............. 8 - 0 0 2 a rt.123(1)................. .8-025, 8-031 art. 124..................... .8-025, 8-031 art. 125(8)................ ............. 5 019 art. 127..................... ...........10-015 (1)........ 8-025,8-031, 10-016 (2 )...................... .............8-031 a rt.128(1)................ .............8-026 art. 135..................... .............7-032 art. 136..................... .............7-032 art. 137..................... ............. 7-032 art. 139(1)................ .9 009,9-012 (5)...................... .............5-007 art. 140..................... ............. 1-041 art. 141(2)................ .5-022,9-018 art. 142..................... .............5-029 ( 1)...................... ............. 9 009 art. 144..................... ............. 9 009 a rt.l4 8 (3 )(a ).......... .............9 016 art. 149......... 1-044, 1-045, 9-011 ( 1)...................... .............9-012 (2 )...................... .1-046, 9-014 a rt.l4 9 A .................. .............9-012 art.l4 9 B ................... .............9-012 a rt.l4 9 D ................. .............9-012 a rt.l4 9 E ................... . 1-045, 9-012 a rt.l4 9 F ................... .9 -011,9-012 art.l4 9 G .....1-005, 1-047,9-012 a rt.l4 9 H ................ 9 012, 10-017 a rt.l 49 J ................... .9 -0 1 1 ,9 012 art. 150..................... .............6-034 (2 )...................... .............6-034 art. 151..................... ............. 9-017 art. 152........ 1-046,5 023,9-018, 10-017 ( 1 )...................... ............. 2-005 (b ),(c )......... .............5-023 (2 )...................... ..............2 005 art. 153........ 5-004, 5-009, 5-010, 5 -0 1 1 ,5-014,6-009, 9-012, 9-033 ..............5-010 (1)......................

TABLE OF LEGISLATION

(3 ) .....................................5-003 (5).....................................5-014 art. 154A 3-027, 7-016, 9-012, 10-015 (1)—(4 ) ............................ 9-012 art. 156(3)...............................2 036 art. 160................................... 2-035 art. 164(1)...............................4 009 (2) ..........4-001, 4-007, 4-012, 4-0 1 3 ,4 -0 1 4 (a ) ...............................4-012 (b ) ................. 4 -0 0 7 ,4 -0 1 4 art. 165................................... 7-013 (1 )....................... 2-013,4-021 art. 170................................... 2-003 a r t.l7 2 (l) ................. 2-013,4-021 ( 2 )....................... 2 012,4-021 art. 170(2), (4)........................2 036 art.l71(2)(a)(ii)..................... 5-034 art. 182(1).............................. 2 036 art. 187(1).............................. 7 031 (4 ).................................... 7 033 arts 188 190........................ 6-031 art. 191...................................10-018 art. 197.................................... 8 0 1 8 (1 ).................................... 8-045 (2), (2 A )........................ 8-045 (3 ).......................8-049, 8-066 (5 )....................... 8 0 5 0 ,8 051 ( 10 ) .................................. 8 018 art. 198..........8 032, 8-025, 8 031 (1).................................... 8-033 (3 ).................................... 8-034 (4).................................... 8-034 art. 199...................................7-033 (1), ( 3 ) ............................ 8 029 a rt.200(1).............................. 7-032 (4)....................................7-032 (7)....................................7-032 a rt.2 0 1 ...................................7-032 art.2 0 3 ...................................7-033 (4 )....................................7-033 art.204(5).............................. 7-033 art.207(1)..............................7 032 ( 6 )....................................7 032 art.208(2).............................. 7 032 a rt.2 0 9 (l)..............................7 032 a rt.2 1 0 (l)..............................7-032 (3)....................................7-032 (5) ....................................7-032 a rt.2 1 1 .................................. 7-032 a rt.2 1 2 ...................................7-032 a rt.2 1 2 D ............................... 9 O il a rt.2 1 2 G ....l 047,9-012, 10-018

a rt.2 120(1), (2).................... 9 012 art.212S .................................9-011 art.2 1 2 V ............................... 9-011 art.2 18 5 034, 5 035 a rt. 2 2 2 (2 ) .............................. 8-060 (3)....................................8-058 art.226(6).............................. 5-018 a rt.2 3 2 ................................... 8 030 a rt.233(1).............................. 8 030 1988 F undam ental Rights (Practice and Procedure) A ct................. 5 014 2001 C onstitution (Am endm ent) A ct (N o. 4) (2001 6 ) ...... 8 066 2006 A m erindian A ct (2006-13).... 1 047 ss.59 6 2 ................................. 1-047 s.60(1)..................................... 1 047 2006 C aribbean C om m unity Act (2006-8).............................4-028 2007 Time Limit for Judicial Decisions Act (2007 -2) ss.4, 5, 8 ................................. 8 066 s 7 , 11......................................... 8 066 2011 C onstitutional/ A dm inistrative Law C ourt (Practice D irection) ss.3, 5 ......................................5 003 Jam aica Senate and H ouse of Representatives (Powers & Privileges) A c t............. 2 013 1864 Offences A gainst the Persons A c t......................................3 020 1961 Judicature (Rules o f C ourt) A c t......................................5 014 1962 C onstitution... 1 037,1 041,3-007, 9 -0 0 1 ,9 013 C h.3 3 014,5 021, 6 008,9-013 C h.7 4 -0 1 6 ,4 -0 1 7 ,4 -0 1 8 , 7 018 C h.9........................................7 006 s.2 ................. 4-001,4-002, 5-004 ss.9, 10................................... 9 017 s.4............................................ 4-026 s .13 3-0 1 4 ,6 008,6 023, 9 009 (1)(c) ..................5-007, 9-016 (2) .......... 9 0 1 3,9 0 1 6,9 026 (b)............................... 4-002 (3 )..................................... 9-013 (g) ..................1 0 4 4 ,9 013 (h ) ..................1 044,9 013

TABLE OF LEGISLATION

..1-044, 1-046, 5-025, 9 013,9-014 (j)................... 5-025,9-013 (k)...9 0 1 1 ,9-013,10-017 (D...,...9-0 1 1 ,9 -0 1 3 ,9 -0 1 4 (m).............................. 9-013 (r)............................... 7-011 (4)....... ............................. 5-005 (5)....... ....5-007,9-002, 9-011 (6 )....... ...........................10-017 (7)....... ...5 022, 5-025, 5-036, 9-013,9-018, 10-017 ( 8 ) ....... ..............9-013, 10-017 (a), ( b ) ......... 5-025, 9-013 ( 12 ) ........1-046, 5-023, 5-025, 9 -013,9-018, 10-017 (a)-(c )........................5-025 ss. 14—17_............................. 9-013 s. 15(1).................................... 9-009 (3)(b)............................... 6-034 s.16................6-008, 8-010, 9-009 s.17......................................... 3-025 s.18..............5 025,9-013, 10-017 (l)(b)............................... 5-025 (2 ) ....... ............................. 5-025 s.19 ........... ...5 0 0 4 ,5 -0 0 9 ,5 010, 5 -0 1 1 ,5 014,9-033 ( 2 ) ....... ............................. 5-010 (4)...... ................ 5-016,9-036 (6 ) ....... ............................. 5-014 s . 2 0 ........... ............................. 8-041 ( 1 )....... ................ 6-008,6-011 ( 2 )....... ................ 6-008,6-011 9 017 (3)....... ............................. 9-017 (4).................................... 9 022 (8 )....... ............................. 3-014 (9)...... ............................. 6-034 s.24(4)(c).„............................. 6-034 s.25......................................... 6 009 s.26(4), (5) ............................ 6-034 ( 8 )....... ...3 0 1 4 ,3 -0 2 0 ,5 023, 6 017,9-013, 10-017 (9)....... ............................. 3-020 (b)............................... 3-020 s.27......................................... 2-008 s.30(2).................................... 2-003 s.32(1).................................... 2-007 (4)....... ...2 003, 2 007, 5 018, 8 030 (5)....... ............................. 8-030 s.3 5 ............,...2-023,2-029,4-015 ( 1 )....... ............................. 2-023 (2 )....... ............................. 2-027

xlv

s.48 .........................................7-001 (3)........ ............................ 2 0 1 2 s.49(2)........ ............................4-012 (3)........ ,2 -0 1 3 ,4 -0 0 1 ,4 -0 1 5 , 4-021 (b)...............................4-007 (d)...............................4-014 (e)...............................4-012 (4)........ ,2 -0 2 8 ,4 -0 0 7 , 4-009, 4-013 s.5 0 ............................9-010,9-027 s.51 .........................................7-013 s.5 2 (l).......................2-013,4-021 s.54(3)........ ............................2-028 s.57............. ............................2-029 s.58(1)........ ............................2-029 s.6 0 .........................................2-003 (3)....................................2-008 ss.63, 6 4 .................................2-003 s.64 .........................................2-007 (5)........ ............... 2 -0 2 7 ,7 002 s . 6 6 ......................................... 2 - 0 2 1 s.67(2)(c)................................2 023 (13)..................................2 003 ss.68-69................................. 2 026 s.6 9 (l)........ ............................ 2 026 s.70 .........................................2-003 ( 1)........ ...............2-007, 7-002 s.80 .........................................4-015 (2 )........ ............................2-023 ss.90-91.................................2-003 s.94(3)........ ............................7-031 (6 ) ........ ............................7-033 s.95 .........................................7 033 s.96 .........................................7-033 ( 1)........ ............................7-033 (5)........ ............................7-033 s.97 .........................................7-018 (3)........ ............................8-045 s.98(1)........ ..............2-023, 8-024, 8-030 ............................8-026 (2 )........ s. 1 0 0 .......... ............................8-049 ( D ,( 2 ). ............... 8 045, 8 046 ( 6 ) ........ ............................8-050 (a)...............................8-050 s . 1 0 1 .......... ............................8-060 s. 103(4)..................................8-045 s .104( 1) ...... ..2-023, 8-024,8 030 s. 107(1)...... ............................8-058 s . 1 1 0 .......... ,.4 -0 1 6 ,4 -0 1 8 ,7 -0 1 8 s .ll 1 .......... ...............8-032, 8-033 (3)........ ...............2-023,2-025 (4)........ ........................... 8 034

x lv i

1962

1974 1974 1983

1992 1994

2000

2004

2004 2004

2004 2004

2004

TABLE OF LEGISLATION

s.l 1 2 ........................................ 8-056 (1), ( 2 ) ............................. 8-029 s. 124.......................................... 7032 (1 )......................................2-023 (2 ).......................2-025, 7-032 (4 )......................................7 032 (5 )......................................7-032 s.125(1)................................... 7-032 s. 128........................................ 2-025 s. 129........................................ 7-032 (1 ).......................2-023, 2 025 (2 )......................................7-032 (3 )......................................7 032 (5) 7-032 s. 131........................................7-032 s. 136..............2-004, 5 -018,5-019 Jam aica (C onstitution) O rder in Council s.4.............................................3-020 (1 )......................................5 023 G un C o u rt A c t.......... 5 004, 6-034, 7- 00 7 ,7 018 Suppression o f Crimes (Special P ro v isio n s) 6-034 C ontractor-G eneral A c t....................................10-021 s.3(2)..................................... 10-021 s.4 ..........................................10 021 s. 15(1)...................................10-021 s.18....................................... 1 0 - 0 2 1 Financial Institutions A c t 8 041 Suppression o f Crime (Special Provisions) A ct (Repeal) A ct (1994-10).. 6-034 Child C are and Protection Act s.4 ......................................... 10-018 Public D efender (Interim ) Act s.4...........................................10-018 ( 2 ).................................. 10 018 s,13(a)(i), (ii)........................ 10-018 C aribbean C o u rt o f Justice A c t.......................................4-016 C aribbean C ourt o f Justice (C onstitutional A m endm ent) A c t.............4-016 C hild C are and Protection A ct 2 0 0 4 ......................... 10-018 Judicature (Appellate Jurisdiction) (Am endm ent) A c t............4-016 C aribbean C om m unity A ct (2004-15)...........................4-028

2005

C aribbean C ourt o f Justice (O riginal Jurisdiction) A ct (2005- 17) s. 12.......................................... 4-028 2009 Sexual Offences A c t ................. 5 025 2010 Bail A c t....................................... 7 022 2010 Independent Com m ission o f Investigations A c t......... 10 022 s. 13(2)................................... 10 021 s.21(1), (5), (6 ) .....................10-021 2011 C harter o f Fundam ental Rights and Freedom s (C onstitutional A m endm ent) A c t ........... 1 041, 1 046,5 0 2 5 ,9 010, 9 0 1 3,9 027 M ontserrat 2010 C o n stitu tio n ............ 8 009,10 002, 10 006 P t V I I ......................................7 006 P tV I I I ..................10-006, 10 021 s.2................. 6-008, 9 0 1 1 ,9 016 s.5............................................. 1 041 s.7(l), (8 ) 6 -0 0 8 ,6 -0 1 1 ,8 010 s.13.......................................... 9 009 s.l5 (5 )......................................9 016 (a ) 9 016 s.16 .......................................... 9 O il (3) 9 014 s. 18.......................................... 9 017 ss.18, 19.................................. 6-034 s.19.......................................... 9 017 s.20 5 -0 0 4 ,5 0 0 9,5 010, 5 0 1 1 ,5 -0 1 4 ,6 -0 0 9 , 9 033 (3) 5 003 (5)......................................5 014 (6 ) ..................................... 5 014 s.2 2 (l)........................ 2 0 0 8,2 031 (2 ) ..................................... 2 031 (3 )........................ 2 0 0 3,5 018 s.2 4 (l)..................................... 2 007 s.26(4)......... 2 003, 2 007, 5 018 s.29 .......................................... 2-003 s.32(2)......................................4-006 (3) 2 031 s.3 3 2 003 (1 ) ........................ 2 -0 0 7 ,2 031 (2 )......................................7 002 s.3 4 (l) 7 002 s.39(1)......................................2 031 s.4 2 (l)......................................2 031 s.45 .......................................... 2 031

TABLE OF LEGISLATION

s.46........................... ..2 013,4-021 (2 )....................... .............7 031 s.4 8 (l)....................... .............2-027 s. 49(6)....................... .............7 033 s.51.............................2 013,4-021 s.67.........................................2-003 (2 )....................... .............2-027 (3)....................... .............2-031 s.71.........................................7 001 s.7 2 .........................................7-013 s.7 4 .............................2 003,2-032 (2 )....................... .............2-032 s.76 ........................... .............2-032 s.77 ........................... .............2 013 s.80 ........................... .............8-009 s.81 ........................... ............. 8 0 0 1 s.8 2 ........................... .2-013, 7 032 (3)...................... .............7-032 (5)...................... .............7-032 ( I D .................... .............7 032 s.83(1)...................... .............7 032 s.85(2)...........7-033, 8-029, 8-034 (3)...................... .............8-029 (5)...................... .............8-034 s.l 17 ......................... .............2 005 s . 1 2 1 ......................... .............2 032 onstitution O rder s-5(l)......................... .............4-026 s.71........................... .............4-006 s. 117(3).................... ............. 4-006 St. Kitts-Nevis 1983 C o n stitution ................................9 001 Cap V I I ..................................7 006 s . l ............................................ 2-039 s.2.....4-001, 4-002, 4-026, 5 004 s.3 ............... . 6-025, 9 006, 9 008, 9 009, 9-016 (a)......... ..............6-008,6-023 s.5................ ...........................9-009 (6 )......... ...........................5 007 s.6 ( l ) ........... ...........................1 041 s-8 ( l) ........... ...........................9 009 s.9 ................ ...........................9 009 (2 ) ( c ) ...,...........................2 038 s . 1 0 ..............,.2 039,7 011,9 009 ( D ,( 2 ).. ..6-008,6 0 1 1 , 8 0 1 0 s . l l .........................................9 022 s. 1 2 (2 ) ......... ...........................9 025 s.14.............. ...........................6-025 (3 )(a)...,...........................9 016 s. 15(3)......... ..............1 045, 9-014 (5)......... ...........................2 038 ss.16, 17.................................6-034

x lv ii

s.17(1)( c) ..................................9 017 s.18..............5 -0 0 4 ,5 009, 5 010, 5-014, 6-009, 9 033 (1 ).................................... 9 009 (2)........................ 5 016,9 036 (3).................................... 5-003 (5).................................... 5- 014 ( 6 )........................ 5 014,7 014 s.19 6 -0 3 4 ,9 -0 1 7 ,9 018 s . 2 1 ........................................... 2 008 s.23(3).................................... 2-003 s .3 0 (l)(a ).................................2 023 s.31(2)...................................... 2 027 s.3 3 ........................................... 2 023 s.34(6)...................................... 2 023 (8 ) 2 038 s.37........................................... 7 001 s.38.............................. 4 -0 1 8 ,8 009 (2 )...................... 4-007, 4-009, 4-013 (3 )......................... 4 -0 0 1 ,4 012 (a ) ...............................4-007 (b )...............................4-014 (10) .................................. 4-011 s.42......................................... 2-003 s.44..............2-013, 4-021 ,7 -0 1 3 s.45................2-012,2-013, 4-021 ss.46-47.................................2-003 s.47......................................... 2 007 (4).................................... 2 027 s.49.........................................2 023 s.50(7).................................... 2 003 s.52.............................2 003, 2 026 (2).................................... 2-007 (4).................................... 7 002 (6 ).................................... 7-002 s.56(1).................................... 2-007 s.58(2).................................... 2-023 s.65(2).................................... 7-031 (6 ).................................... 7 033 s . 6 6 ......................................... 2 003 s.77.........................................7 032 (1) 2 025,7 032 (3 ).................................... 7 032 (5).................................... 7- 032 ( 6 ).................................... 7 032 (11) ..................................7 032 s.7 8 (l).................................... 7 032 s.79(2)(c)................................2 025 s.81.........................................7 033 (5 ).................................... 7 033 ( 6 ).................................... 7 033 s.83(2), ( 3 ) ............................ 8 029 s.84.........................................7 032

xlviii

2005

TABLE OF LEGISLATION

(1 )........................2 025,7-032 (2).................................... 7 032 ( 6 ).................................... 7-032 s.85 .........................................7-032 s.96 ...............4-005, 5-004, 5-009, 5-011,5-012, 5-014, 6-009 (4)....................................5-014 s.9 7 .........................................5 003 s.98 ........................................ 4-018 s.99.........................................4-018 s. 100...................................... 2-039 s.l01(2)(a).............................2-023 s. 102(5)................................... 2 039 s. 103(1), (2)............................ 2-039 s. 104(3)................................... 2 039 s.l 13 1-036, 2-039,10-004 s. 116(2)........ 2 -0 0 3 ,2 007, 5 018 S c h .l......................................4-018 Pt 2................................. 8 009 Sch.2 p ara.2 .............2- 005,4-026 C onstitution O rder Sch.2 s .9 .................................9-018 C aribbean C om m unity Act (2005 2 7 )...........................4-028

St. Kitts-Nevis-Anguilla 1967 Emergency Powers Regulations reg 3(1)................................. 6 025 1969 Public M eetings and Processions Act (C ap.302)...........................6-034 St. Lucia C aribbean C om m unity A ct (Cap 19.21)....................... 4-028 1979 C o n stitu tio n ...................2-038,9-001 P re am b le .................. 6-00 6 ,9 -0 0 4 C ap V I.................................... 7-006 s .l 9-006, 9-008, 9 009, 9-016 (a).......... 3 025, 6-008, 6 023 s. 3(6)........................................5-007 s.4 ............................................ 9-009 (1)......................................1-041 s.5 ..............................1-043, 3 020 s. 6 ( l) ........................................9-009 s.7 ............................................ 9-009 (2)(c ) ............................... 2-038 s . 8 ............................. 7 011,9-009 ( 1 ), ( 8 ) 6-008,6-011, 8 -0 1 0

s.9 ............................................ 9-022 s. 10(2)..................................... 9-025 s .l2 (3 )(a )............................... 9-016

s. 13(2)......................................5 007 (3) 9 014 s.9(2)(c).................................. 2-038 ss.14, 15.................................. 6 034 s .l5 ( l)( b ) ................................9-017 s.16 5 004,5 009,5 010, 5 014, 6-009, 9 033 (2)........................ 5-016,9 -036 (3 )......................................5-003 (5 )......................................5 014 (6 )....................... 5 014, 7-014 s .17............................6-034, 9-017 s.19.......................................... 2-008 s.22(2)..................................... 2 003 s.2 4 ..........................................2 029 (2) 2 027 (b) 2-023 s.26(3)..................................... 2 O il s.27(2)(e).................................2-027 s.3 3 ..........................................2 021 s.4 0 ..........................................7 001 s.4 1 .............................4 -0 1 8 ,8 009 (2) ....................... 4 -009,4-013 (3 )...................... 2 029,4-001, 4-013 (4)....................... 2-029, 4-013 (5) .......................2 029,4-013 (6 ) ..................................... 4-012 (a ) ................. 4-007, 4-012 (b )............................... 4-014 (11) 4-011 s.42 ................2 012, 2-013, 4 021 s.47 ..........................................2 003 ( l) ( a ) 5-013 s. 5 0 ..........................................2 029 s.5 1 (l)..................................... 2-029 s.5 3 .......................................... 7-013 (1 ).......................2 013,4-021 ss.54, 55 ..................................2 003 s.5 5 ..........................................2 007 (4) 2-027 (b) 7-002 s.57(2)(c).................................2 023 (3)(c) 2 023 s.6 0 .............................2 -0 0 3 ,2 026 (2)..................................... 2 007 (4 )..................................... 7 002 s.6 4 (l)..................................... 2 007 s.67(2)..................................... 2 023 s.73(2)..................................... 7-031 (6 ) 7 033 s.74..........................................2 003 s.8 5 (l)........... 2 023, 2-025, 7-032 (3)..................................... 7 032

TABLE OF I.FGISLATION

1965

1982 1995 2005

(5) ( 7 ) ........................... .7 032 ( 12 ) ................................. .7 032 s.8 6 ( 1 ) ................................... . 7 4)32 s.87(2)(c).............................. .2 025 s.8 9 ........................................ .7 033 (6 )................................... .7 033 (7)................................... .7-033 s.91(2)................................... . 8 029 (3)....................... 8 029,8 -055 s.92........................................ .7-032 (1)...........2 0 2 3 ,2 -0 2 5 ,7 032 (3)................................... .7 032 (5) (7) ........................... .7-032 s.9 3 ........................................ .7 032 s.9 4 ........................................ .7 032 s .105............4 005, 5 004, 5 O il, 5 014, 6 D09 (4)................................... .5 014 s. 106............5 003, 5 004, 5 009, s.107..........................4-018, 5 013 s. 108..........................4-018,5-013 s. 109..................................... . 8 009 s . 1 1 0 .................................... 10 018 (2 ) ................................... .2-023 s.ll2 (4 )(a )............................ .2 038 s.l 18(1)................................. .2 -023 s. 120.............4 001, 4-002, 5 004 s. 121(3)....................2 003, 2 007, 5 018 S c h .l..........................4 018,8 009 Sch.2 p a ra .2 ............1 043, 2 005, 4-026 para. 1 0 .......................... .1-043 C onstitution O rder Sch.2 s. 10............................. .9 018 St. Lucia Crim inal C o d e ...... .3-020 St. Lucia Dom estic Violence A ct.................................... .3 025 H ouse of Assembly (Privileges, Immunities and Powers) O rder (1965 31)........................ .2 013 Parliam entary Com m issioner A c t....... 10-018 Dom estic Violence A c t......... .9 003 A ttorney G eneral’s Reference (C onstitutional Questions) Act (Chap 17.18)................................ .5 013

St. Vincent and the Grenadines C aribbean C om m unity Act (Cap 184)......................... .4 028

1979

xlix

Caribbean C ourt o f Justice Act (Cap 18) s . l l ............. ...........................4-028 C onstitution.. ............2 013, 10 018 C ap V I....... ...........................7 006 s . l ............... ..9 0 0 6,9 009,9 016 (a)........ .............. 6-008, 6 - 023 s . 2 ............... ...........................4-026 s.3............... ...........................9 009 ( 6 )........ ...........................5 007 s.4 (l)........... ...........................1 041 s.6 ( l) ........... ...........................9 009 (2 ) ........ ........................... 6 032 s . 8 ............... .............. 7 011,9-009 ( 1)........ .3 0 2 6 ,6 -0 0 8 ,6 011, 8 010

( 8 )........ ..6 008,6 0 1 1 , 8 0 1 0 s.9 ............... ........................... 9 022 s. 1 0 ( 2 ) ........ ...........................9-025 s,12(3)(a)... ...........................9 016 s-13(3)........ ...........................9 014 ss.14, 15..... ...........................6-034 s. 15(l)(c)— ...........................9 017 s.16............. .5 004, 5 009, 5 010, 5 0 1 4,6 009, 9 033 .............. 5 016,9 036 (2 )........ (3)........ ........................... 5 003 (5)........ ...........................5 014 (6 ) ........ .............. 5 014,7 014 s. 17............. .............. 6 034,9 017 s.19............. ........................... 2 008 s.2 2 (2 ) ........ ........................... 2 003 s.24............. ...........................2 029 s.27............. ........................... 2 0 2 1 s.26(4)........ ........................... 2 0 1 1 s.28(a)........ ...........................2 027 ( b ) ....... ...........................2 023 s.29(2)........ ...........................2 027 s.32(l)(c).... ...........................2 023 s.3 7 ............. ...........................7 001 s.3 8 ............. ........................... 8 009 (2 )........ ..4 0 0 1 ,4-009,4-013 (3)........ ........................... 4 012 (a)... ...........................4-007 (b)... ...........................4-014 ( 8 )........ ...........................4 011 s.45............. ...........................7 013 ( 1) ........ ...........................4 021 s.46............. ..2 -012,2 0 1 3 ,4 021 s.48............. ...........................2 007 (5)........ ...........................2 027 (b)... ...........................7 002 s.51............. ........................... 2 026

1

1966

2009

TABLfc OB' LEGISLATION

(2).................................... 2 007 (4 )....................... 2 003, 7 002 8.55(1)......................................2 007 s.59(2)......................................2 023 s.64(2)......................................7 031 ( 6 ) .................................... 7-033 s.7 7 (l)....................... 2-025,7- 032 (c)(ii) 2-023 (2 ).................................... 7 032 (3 ) ..................................... 7-032 (5) ( 7 ) ............................. 7-032 (12) 7 032 s.7 8 (l)......................................7 032 s.79(2)(c).................................2-025 s.81............................2 -0 0 3 ,7 033 (5 ) ......................................7-033 ( 6 )......................................7-033 s.82(2)...................................... 8 029 s.83(2)......................................8 029 s.8 4 .......................................... 7-032 (1 ).......................2 025,7-032 (2)......................................7-032 (6 ) 7-032 s.8 5 .......................................... 7-032 ss.9 1 ,9 2 .................................. 2-003 s.9 6 .............. 4-005, 5-004, 5-009, 5-011, 5-012, 5-014, 6-009 (4 )......................................5-014 s.97.......................................... 5-003 s.101.............4-0 0 1 ,4 -0 0 2 , 5 004 s. 102(2)........2 0 0 3 ,2 007, 5 018 s. 106........................................2-003 Sch.2........................................ 8-009 p a ra .2 ........................2-0 0 5 ,4 -0 2 6 C onstitution O rder Sch.2 s. 1 0 ......................................9 018 Legislative Council (Privileges, Im m unities and Powers) A ct (1966-14)........................... 2-013 St. Vincent and the G renadines C onstitution Bill cl.7 ........................................ 10 0 2 1 cll.9 11 ................................10 017 cl. 16......................................10 017 cl. 18....................................... 10-017 cl.20...................................... 10 017 cl.22......................................10 017 cl.23...................................... 10-003 cl.29....................................... 10-017 cl. 34(1)...................................10-017 cl.46....................................... 10-018 cl. 8 5 ...................................... 10 021

cl. 139................................... 10 021 cl. 141................................... 10 021 cl.226................................... 1 0 -0 2 1 Trinidad and Tobago C aribbean C om m unity Act (C hap 81:11)..................... 4-028 H ouse o f Representatives (Powers & Privileges) (C hap 2:02) 2 013 M agistrates Protection Act (C hap 6:03) s.5 .............................................8 065 R epresentation o f People A ct 2 013 Suprem e C o u rt o f Judicature A ct (Cap 4 :0 1 ).................5 014 T obago H ouse o f Assembly Act (C hap 2 5 :0 3 )............2 040 s.5............................................2 040 (2 )(c)...................3 0 1 9,6 014 (e) 6- 0 1 1 ,8 010 (f) 6- 0 1 1 ,8 010 (h)................................3 019 s . 6 ............................................ 9 018 s.7 .............................................6-034 ss.7 10................................... 9 017 s . l l ( l ) .....................................9 017 s. 13......................................... 9 025 (1)......................................6-031 s.2 2 (l).................................... 2 040 s.29......................................... 2- 040 s.3 0 ......................................... 2 040 ss.33, 3 4 .................................2 040 s.56 ......................................... 2 040 1962 Bill o f R ig h ts............................ 10 015 1962 C onstitution .. 1 0 3 8,2 0 0 4 ,2 006, 3 010, 3 0 1 5,3 016, 3- 020, 5 019, 6 008, 6 019,8 030, 9-001, 9 010, 9 027. 9 034 s.2(c)(ii)................................. 3 015 s.4 ........................................... 5 010 s. 102(4).................................. 5 019 1962 Defence A c t .................. 6 -0 1 9 ,6 034 1962 O rder in C o u n c il........................1 038 1965 Industrial Stabilisation A c t..4 020, 6 034 1972 Sum m ary Offences A c t 6-034 1976 C o n stitu tio n ............... 1 011,1 038, 2 -0 0 2 ,2 -0 3 8 ,3 010,3 0 1 1 , 3 014,4-008, 5 005,5 006, 8-024, 8 030, 9 010,10 009 C ap 1 9-010

li

TABf.F, OF LEGISLATION

Cap 1:01 ............................... 2 003 Cap 9 ......................................7 006 Pream ble ............................. 9 004 s . l ............................................3 015 (a).................................... 3 015 (d ) 2 004 s.2.................. 4 0 0 1,4 002, 5 004 s.3........................................... 1 Oil s.4................ 5 009, 8 011,9 016, 9 0 3 0,9 031 (a ).......................5 028,7 Oil (b ) ................................... 7 036 (c) .................................... 9 010 (d ) ................................... 7-036 (c).......................9 0 1 0,9 030 (g).................................... 9 010 s.5................ 5 010,8 0 1 1,9 016 (1 )......... 4 0 0 2 ,4 026,5 024 (2 )(c), (f).......... 6-008,6 008, 8 011

s . 6 ................ 1 046,2 005,2 006, 4 026,5 023, 9 028 (1 ) (c ).................................5 023 (2) 5 023 s.7 ............................................. 9 028 s .8 ............................................. 6 034 s. 13..............4 013.9 027,9 028, 9 030,9 031,9 032 (1), ( 2 ) 5 026 s. 14..............5 004,5 009,5 010, 5 O il, 5 014,6 009, 9 033 (2) ...................................... 5 016 (4 )...................................... 5 003 (6 ) 5 014 s.38........................... 1 01 1 ,2 Oil (1 )...................................... 2 003 s.40 2 029 (2)(a ) ................ 2 0 1 0,2 027 (b) 2 023 s.43(2)(e) 2 027 s .4 8 (l)(a ) 2 013 s.4 9 (l) 4 015 (2) 4 015 (e ) 2 024 s.49A 2 024 (5 )...................................... 2 024 s.50(14) 2 023 s.52 2 013 s.53.......................... 7 001, 10 009 s.5 4 .......................... 9 028, 10 009 (2)...................... 4 009, 8 014 (a ) ................................9 027 (b )................ 2 0 2 8 ,4 013

(3) (5)

4 013 4 0 0 1,4 008,4 009, 4 010 s.55(1)........................2 01 2 ,4 021 (3)....................... 2 0 1 3,4 021 s.56........................................... 7 013 (1 )....................... 2 013,4-021 s.61 ........................................... 2 003 ( 1).......................................2 008 (2 ).......................................2 009 s.65........................................... 2 029 s.6 6 ( l ) .......................................2 029 ss.6 7 ,6 8................................... 2 003 s . 6 8 ........................................... 2 007 (1) 2 027 s.71(3)...................................... 2 023 s.72(2).......................................2 003 s.7 5 (l).......................................7 032 ss.75 7 6 ................................... 2 026 s.76..........................2 003, 10 009 (1 )..................... 2 007, 10 009 (a ) .................................2 023 (b ) .................................2 Oil (3 )....................... 2 010,7 002 s.77 ........................................... 7 002 s.80 ........................................... 2 008 (2 )..........2 003,2 007,2 O il, 5 018 s. 8 7 ........................................... 2 003 s.8 8 (d)...................................... 2 023 s.90(3)...................................... 7 031 s.9 1 10 018 (2 ) 2 023 s.9 9 ........................................... 8 014 s .100......................................... 8 014 s.102.........................................2 023 s. 103.........................................2 023 s .104(1).................................... 8 026 s. 106......................................... 8 045 (2) 8 045 s.l 10......................... 8-032, 8 033 (2 )...................................... 8 033 (3 )....................... 2 023,2-025 s.l 11 7 033 (1)....................... 8 - 029,8 054 (4 )...................................... 8 029 s.l 17(1).................................... 2 023 s. 119(6)....................................2 023 s. 120(2)....................2 023,2 025, 7 032 s.121 7 032 s. 122.........................................7 032 (2).......................2 023,7-032 (3)...................................... 2 025

lii

1977 2000

2014

TABLE OF LEGISLAriON

s. 123.......... ............................ 7-032 s. 124.......... ............................ 7 032 (2 )........ ..............2 023, 2 025, 7-032 s .125.......... ............................ 7- 032 s. 126.......... ............................ 8 034 (2 )........ ............................ 7-032 (3)....... ............................ 7-032 (4)........ ............................ 7 032 s .129(1)..... ............................ 8 055 s. 130(2)..... ............................ 2 023 s.135 ......... ............................ 2-025 s. 136......... ............... 8-034, 8 058 (2 )....... ............................ 8-046 (5)....... ............................ 8 060 (6 )....... ............................ 8 058 (7)....... ............................ 8 034 s. 137......... ............... 8-048, 8-050 ( 1 )....... ............................ 8-049 (3)....... ............................ 8-050 (4)....... ............................ 8-048 s .140......... ............................ 8 058 ( 1)....... ............................ 2-023 s .141......... ............................ 8-058 O m budsm an A c t...................10-018 Equal O pportunity Act (C hap 22:03)......3 0 3 3,7 036, 8 013 s.3 .............. ............................ 3-033 T rinidad and T obago C onstitution (Am endm ent) Bill ell 5, 6 ............. ...........10-012, 10-013

Turks and Caicos Islands 2006 C onstitution O rder............... 10 006 s-5(l)......... .............................4-026 (4)....... .............................4-006 s.62.........................................4-006 2011 C o n stitu tio n ................2 033,8 008, 10 0 0 2 , 10-006 Pts VI, VII ............................ 7 006 s.4 ........................................... 1-041 s.5 ........................................... 2 005 s.6 ........................................... 7 011 s.16......................................... 9 0 1 1 s . 2 1 ...............5 004, 5-009, 5 010, 5-011,5 -014,9 033 (2)....................... 5 016,9-036 (3)....... ............................. 5 003 (5)....... ............................. 5-014 (6 )....... ............................. 5-014 s.2 3 (l)....................... 2 008,2 031 (2 )....... ....2 007, 2-031, 5-018

s.27(6)............... .....................4-006 s.28.................... .................... 9 033 s.29.................... ....................2 033 ( 1) ............... .....................2 007 (9)............... ........ 2 007, 5 018 s.31.........................................2 003 ( 0 ( c ) ......... .....................7 002 ( 2 )............... ........ 2 -0 0 7 ,2 031 s-33(l)............... .....................7 002 s.3 6 .........................................2 031 (4 )(c )......... .....................2 031 s.3 7 (l).................................... 2 031 s.39(1).................................... 2 031 s.41(2).................................... 4-006 s.43(2).................................... 2-027 s.57 ................... ..................... 2 003 (2 ) ............... ..................... 2 027 (3)............... ..................... 2 031 s.62 ................... ..................... 7 001 s.63 ................... ..................... 7 013 s.67(a).................................... 6 008 s.7 0 ................... ..................... 2 021 s.72................... ........ 2 03 2 ,2 033 OX ( 8 ) ...... ....... 6 0 0 8 ,6 0 1 1 , 8 010

s.73................... ........ 2 003,2 032 s.75................... ..................... 2 032 s.7 6 ................... ..................... 2 013 s.77................... ..................... 8 024 (2 ).............. ..................... 8 045 (3).............. ..................... 8 026 (5).............. ..................... 8 045 s.8 0 ................... ..................... 6-034 (3)............. ..................... 8 045 s.81................... ..................... 6 009 s.82................... ..................... 2 013 s.8 3 (l).............. ..................... 8 008 (2 ).............. ........ 8 008,8 064 s.84(1).............. ..................... 8 060 (2)............. ..................... 8 058 ss.83 8 5 ........... ..................... 8 0 01 s.85(5).............. ..................... 8 049 (6 ).............. ..................... 8 050 s . 8 6 ................... ........ 8 032,8 034 ( 1).............. ...................10-016 (2)............. ..................... 8 033 (3).............. ........ 7 032,8 034 (4 )(c )........ ..................... 8 034 (5).............. ..................... 8 034 s.87 ................... ..................... 8 024 ( 1).............. ........ 8 029,8 048 (3).............. ........ 8 048,8 066 s.8 9 ......................................... 7 032 (3).............. ...................... 7 032

1ABLE Oi- LEGIST.A H O N

(4) 7 032 (11) 7 032 s.90 ........................................... 7 032 s.91........................................... 7 033 s. 100(2).................................... 7 031 s. 1 0 1 ....................................... 10 018 91)....................................10 018 s. 127.........................................2 003

1844 1865

1866 1887 1956

CARIBBEAN C O U R T O F JU S T IC E 2006

CCJ Original Jurisdiction Rules r 3.4(4) 6 037

1962

1962 FOREION STATES Canada I960 Bill o f Rights (c.44)... 1 044, 1 050, 3 024,6 008,8 011, 9 001,9 010 s . l .............................................. 6 015 1982 C anadian C harter o f Rights and F reedom s.9 011,9 016 s . l ..............................................9 026 s.7 .............................................. 8 011 s.3 3 ........................................... 9 032 Mauritius 1968 C onstitution s . l ..............................................7 022 s.5(3) 7 -022

1966 1967

1971 1980 1981

1998

liii

Judicial Com m ittee Act (7 & 8 V ic t.4 c .6 9 )................... 4 006 Colonial Laws Validity Act (28 & 29 Viet, c.6 3 ).......1 009, 2 032, 4 006 Jam aica Act (29 & 30 Viet. c.12).................................... 1 024 British Settlements A ct (50 & 51 V ict.c.54)..................1 008 British C aribbean Federation Act (4 & 5 E liz.2c.63)....................... 1 032 W est Indies Act (10 & 11 F,liz.2 c.19)......... 1 008, 1 039, 4 006 Jam aica Independence Act (10 & 11 Eliz.2 c.40) s.l(2 )........................................1 009 G uyana Independence Act (c. 14).......................1 011,2 034 West Indies Act (e.4) 1 008, 1 035,1 037,1 039, 1 0 4 8 ,4 006 s.3 .............................................1 035 s.6 ( l ) ............................ 1 035, 1 048 s.7(2) 1 035 s. 10 1 037 Anguilla Act (c.63) 1 036 Anguilla A ct (c.67) 1 036,1 039 Belize Act (c.5 2 )........................ 1 008 British N ationality Act (c.61).......................1 039, 4 006 H um an Rights A ct (c.42) 3 030, 4 019 British Overseas Territories A c t(c . 8 ) ...l 001, 1 03 9 ,4 006

Nigeria 1960 C onstitution.... 1 049,9 001,9 029

2002

Sierra Leone 1961 C onstitu tion..................................1049

United Kingdom - Statutory Instruments 1939 Leeward Island and W indward Islands (Courts) O rder in Council 1939 (No. 1898). 1 048 1957 U K W est Indies (Federation) O rder in Council 1957 1959 Leeward Islands (Emergency Powers) O rder in Council (SI 1959/2206)... 6 025 1967 West Indies Associated States Supreme C ourt O rder (SI 1967/223) 1 035, 1 048,8 001, 8 009, 8 032, 8 047, 8 050, 10 016

South Africa i 996 C onstitution Act s.8(2)...........................5 007,9 002 s,1 7 2 (l)(h )............................. 4-024 I an/ania C onstitution ................................2 035 United Kingdom - Statutes 1765 Stam p Act (5 G eo.3 c. 12).......1017 1833 Judicial Com m ittee Act (3 & 4 Will.4 c.41)....................4 006 1833 Slavery A bolition (3 & 4 Will.4 c .7 3 )......................... 1 021

liv

1978

1979 1982

1983

TABLE OF LEGISLATION

s.4(5)....................................... 8-045 s.5................................8-024, 8 026 s.8(1)........................... 8-045, 8-046 (4 ) .....................................8-050 (5) .....................................8-050 s . l l ............................. 8-058, 8-060 s. 18............................. 8-032, 8-033 (3)..................................... 8 034 St. Lucia C onstitution O rder in Council (SI 1978/1901) Sch.2 para. 10............3-020, 5-022 St. Vincent O rder (SI 1979/916) Sch.2, para. 10............................ 5-022 Anguilla C onstitution O rder (SI 1982/334) s.9 ............................................2-032 Saint C hristopher and Nevis C onstitution O rder (SI 1983/881)

1983

1991

2009

2011

Sch.2 p a ra .9 ........................... 5-022 Anguilla, M ontserrat and Virgin Islands (Supreme C ourt) O rder (SI 1983/1108)........................ 8-009 C aribbean Territories (A bolition o f D eath Penalty for M urder) O rder (SI 1991/988)........ 2-032 T urks and Caicos Islands C onstitution (Interim A m endm ent) O rder (SI 2009/701)...........................4-006 T urks and Caicos Islands C onstitution O rder (SI 2011/1681) 1 0 006 s .14.......................................... 2 032

t a b l e o f in t e r n a t io n a l a g r e e m e n t s a n d

CONVENTIONS 1773 1783 1945 1948

1948

1950

1957

1959

1960

1965

1965

1966

1966

Treaty of St. V incent................. 1 020 Treaty o f V ersailles................... 1 014 U nited N ations C harter art. 1(2 ) 1 025 Am erican D eclaration o f the R ights and Duties of M an (OAS Res XXX).... 9 001 Pream ble 9 001 Universal D eclaration o f H um an Rights (U D H R )..............3 024,9 001 P ream ble................................ 9 001 a r t . l ..........................................9 001 art. 1 0 ........................ 8 008, 8 0 1 0 European C onvention of H um an Rights (E C H R ) 1 041,3 018, 3 024, 9 001, 9 007, 10 017 a rt. 6 ( l ) ..................... 8 0 1 0 , 8 0 1 1 Protocol N o.l.......... 9 007,9 014 Treaty establishing the European Economic Com m unity........................ 4 029 D eclaration on the Rights of the Child (United N ations) 3 024 D eclaration on the G ranting of Independence to Colonial Counties and Peoples (United N ations)............................... 1 025 Caribbean Free Trade Association (CART FT A ) .......................1 048 Convention on the Elim ination of All Form s o f Racial D iscrim ination.................. 9 012 Covenant on Economic, Social and C ultural R ig h ts................................. 9 012 International Covenant on Civil and Political Rights (IC C P R ) 3 019,3 024, 3 025, 3 027,9 012,9 014 art. 14......................... 8 008,8 010

1969

1969 1973 1979

1981

1981 1982 1984

1985

1989

1994

1997

American Convention on H um an Rights a rt.5 .2 ...................................... 3 025 a rt . 8 ............................8 008,8 0 1 0 Vienna Convention on the Law o f T reaties.................4 028 Treaty o f C h a g u a ram a s........... 1-048 Convention on the Elim ination of All Form s o f Discrim ination Against W om en (C E D A W ) 3 026, 6 023,9 003,9 012, 10 005 African C harter on H um an and People’s Rights art. 13(1).................................. 2 035 Treaty o f Basseterre.................. 1 048 Eastern C aribbean Supreme C ourt A greem ent.............. 1 048 Convention against Torture and other Inhum an or Degrading Treatm ent or Punishm ent (United N ations) 3 -027,9 012 U N Basic Principles on Independence of the Judiciary .............................8 008 a rt . 2 ......................................... 8 0 0 2 art.3 8 003 art. 10....................................... 8 043 art. 12....................................... 8 045 a rt.18....................................... 8 055 Convention on the Rights o f the Child (United N ations)...3 026,3 027,9 012 Inter-A m erican Convention on the Prevention, Punishm ent and E radication o f Violence Against W omen (Convention o f Belem do P a ra )................9 003, 9 012 C harter for Civil Society of the C aribbean Com m unity a rt.X V II................................. 8 012 a rt.X V II.2 .............................. 8 008

lvi 2001

2001

2002

TABLE Ol' INTERNATIONAL AGREHMEN TS AND CONVEN TIONS

C aribbean C o u rt o f Justice T re a ty 1 048, 8 043, 8-047, 8-050 Revised T reaty o f C haguaram as Establishing the C aribbean C om m unity (C A R IC O M ) including the C A R IC O M Single M arket and Econom y (R T C ) 1-048, 6 0 3 7 ,8 001, 8 043 a rt.2 1 1 ................................... 4-028 a rt.2 1 4 ....................... 4 -0 2 8 ,6 037 a rt.2 1 5 ........................ 4-028 A greem ent Establishing the C aribbean C ourt o f Justice art.IV . 6 .................................. 8 051

2007

2010

art.IV .lO .a............................... 8 art.IV .lO .b............................... 8 art.IV . 11.................................. 8 art.IV .12 .................................. 8 a r t .V .l ...................................... 8 a rt.V .1 2 ................................... 8 art. IX. 1.................................... 8 a rt.IX .5.................................... 8 a rt.X V III.3 ............................. 8 Protocol to the Agreement Establishing the C aribbean C ourt o f Justice Relating to the T enure o f Office o f Judges o f the C ourt a r t.l 8 Revised Treaty o f B asseterre. 1

043 043 043 036 036 036 045 051 060

045 048

CHAPTER 1 FOUNDATIONS

1. The Anglophone Caribbean

In the two decades between 1962 and 1983, 12 Caribbean states—islands spanning from the Bahamas in the north to Trinidad and Tobago in the south, Belize in Central America and Guyana in South America—gained political independence from the UK.1The constitutions of these countries are the supreme law. Along with the statutory instruments giving effect to them, these constitutions establish new nations and, in some cases, republics.2 The other Anglophone Caribbean islands—Anguilla, Bermuda,3 British Virgin Islands, Cayman Islands, Montserrat and Turks and Caicos Islands -are British overseas territories.4 They form part of the “undivided realm” of the UK and each is governed by a written constitution. Even with post­ independence processes of constitutional reform throughout the Caribbean,5 the constitutions adopted at the time of independence have been very durable and govern all the independent states, except the republics of Guyana and Trinidad and Tobago. A wave of modern constitution-making in the Caribbean has taken place in respect of the overseas territories, producing 1 “Commonwealth Caribbean” is used to refer to these Caribbean territories that have obtained their independence from the U K and are now part of the Commonwealth: Antigua and Barbuda (1981), Bahamas (1973), Barbados (1966), Belize (1981), Dominica (1978), Grenada (1974), Guyana (1966), Jamaica (1962), St. Christopher-Nevis (St. Kitts-Nevis) (1983), St. Lucia (1979), St. Vincent and the Grenadines (1979), and Trinidad and Tobago (1962). 2 Dominica became a republic on independence. Guyana and Trinidad and Tobago became republics after independence. 3 Bermuda is located in the Atlantic Ocean, north of the Bahamas, and is not identified by the U K as a Caribbean territory. That imperial categorisation has not held firm within the Caribbean. Bermuda is commonly considered to be part of the Caribbean legal systems (see Rose-Marie Antoine, Commonwealth Caribbean Law and Legal System (Cavendish Publishing, 1999), p.3). There is strong intra-region migration, including of legal personnel, between Bermuda and the rest of the Caribbean. Moreover, it shares with most of the Commonwealth Caribbean.a similar constitutional bill of rights that has given rise to cases like Minister of Home Affairs v Fisher (1979) 44 W.I.R. 170; [1980] A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21 (PC Ber), a decision involving Jamaican immigrants that is firmly entrenched in Caribbean constitutional law. See generally Ian Kawaley, “The History of Bermuda's Constitution: Back to the Future” (Foundation for Bermuda Studies Inaugural Lecture Series, Bermuda College, Stonington Campus, June 24, 2004). 4 The terminology “Overseas Territories” was adopted in 2002 in the British Overseas Territories Act 2002 (c.8 ), UK. The US Virgin Islands is English-speaking but falls outside this study. Formerly part of the Danish West Indies, the Islands are an organised unincorporated territory of the US. 5 See Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Caribbean Law Publishing Co, 2002).

1-001

FOUNDATIONS

new constitutions in four of the six Caribbean territories between 2007 and 2011.6

This book examines the foundational constitutional law principles in these 18 Anglophone Caribbean territories. Most had precolonial histories extend­ ing centuries before European colonisation and many switched imperial hands between the sixteenth and nineteenth centuries. By the mid-nineteenth century, all were part of what was known as the British West Indies. The 18 Anglophone independent states and overseas territories form a loose community with a strong shared common law legal tradition. They have had a long—oven if patchy -history stretching back to the seventeenth century of various forms of joint political administration and unification that transcends the present day distinction between independent states and overseas territories.7Their constitutional structures bear similarities in secur­ ing judicial independence, separation of powers and the protection of human rights, and almost all entrench a style of governance with similarities to responsible government in the UK. As of writing, final appeals in constitu­ tional and other matters are heard by the Judicial Committee of the Privy Council in 15 of the 18. And nine, including three overseas territories, share the Eastern Caribbean Supreme Court as their superior court. Both inde­ pendent states and overseas territories are members and associate members of regional organisations like the Caribbean Community (CARICOM) and the Organisation of Eastern Caribbean States (OECS). Regionalised forms of legal education serve both independent states and overseas territories, and a robust movement of legal and other personnel takes place across the Anglophone Caribbean. These elements have produced synergies across the 12 sovereign nation states and 6 overseas territories that make Anglophone Caribbean constitutional law a meaningful conception. Throughout the book, we use “Caribbean constitutions” and “Caribbean constitutional law” as shorthand to describe a body of law relevant to this collective group of Anglophone countries. It is the norm in Caribbean legal scholarship to describe these territories collectively as the “Commonwealth Caribbean”.8 Fundamentals o f Caribbean Constitutional Law departs from that tradition. Technically only the 12 independent states are full members of the Commonwealth, an association of sovereign countries where there 6 New constitutions govern the British Virgin Islands (2007), Cayman Islands (2009). M ontserrat (2010) and the Turks and Caicos Islands (2011). 7 See below para. 1 048. 8 This can be contrasted with the very ecumenical understanding of the “Commonwealth of the Caribbean” or a “Caribbean Commonwealth” of the former Secretary General of the Commonwealth Secretariat, Sir Shridath Ramphal. His generic use of commonwealth to denote states and territories united with common objectives and interests is aspirational. He said: “I plead the cause of a wider vision, not just the vision of integration of the English-speaking coun­ tries of the Caribbean; but the vision of a Commonwealth of the entire Caribbean . . . I plead for a process by which the Caribbean itself ceases to be the dividing sea it has been for centuries and becomes instead a uniting lake . . . In that Caribbean Commonwealth, let me say immediately and without reservation, that I would see all the islands, including those not yet independent, playing a substantive part.” (Sir Shridath Rampal, “A Commonwealth of the Caribbean for the Twenty-First Century” (Caribbean Hotel Industry Conference, Jamaica, June 1993), quoted in S. Ramphal, “Foreword” in Peter Clegg and Emilio Pantajas-Garcia (eds), Governance in the Non-Independent Caribbean: Challenges and Opportunities in the Twenty-First Century (Ian Randle Publishers, 2009), pp.xiii).

2. ( ARI13BKAN CONS I'l l'UTIONS AND CONS'HTI 11'IONAL LAW

3

is equality among its members.9 The six overseas territories are not sepa­ rate members of the Commonwealth since they have no sovereignty of their own.10 They fall within the Commonwealth by virtue of the UK’s member­ ship." Still, the point of departure in this book is 18 Caribbean states and territories, as distinct from 12 Caribbean states and the UK, and, through the UK, 6 overseas territories, as the term “Commonwealth” implies. A study of Anglophone Caribbean constitutional law is necessarily one that considers the impact of empire. Fundamentals wishes to give sharper focus to the heterogeneity in constitutional arrangements in “independent states” and “overseas territories” without adopting an imperial frame of full and subordinate membership. 2. Caribbean Constitutions and Constitutional Law

(a) Caribbean constitutional law as the fundamental law Constitutional law is “the meeting-place of government and law”12 and con­ stitutions are enabling instruments that “provide a continuing framework for the legitimate exercise of governmental power”.13 They also structure relationships between people and institutions of government and mediate relationships between people through “basic shared terms” for governance and living.14 Caribbean constitutions are considered to be fundamental or organic law because they address the “values that would support a certain conception of the good life and justice and [provide] an elaboration of those institutions by means of which this way of life is to be achieved . . .”15 The body oflaw we describe as Caribbean constitutional law extends beyond the document formally referred to as “the Constitution”. The written con­ stitutions are the foremost, though not the only source of constitutional v The Commonwealth is a voluntary association of sovereign countries, equal in status, including the UK. and countries that were once part of the British Empire in Africa, Asia, the Americas, the Caribbean, Europe and the South Pacific. They work together on shared goals on democracy, human rights and development. The British Queen is the symbolic head of the Commonwealth. 1(1 lan Hendry and Susan Dickson. British Overseas territories Law (Hart Publishing, 2011), p.23. 11 Hendry and Dickson, above, p.9. See also Kenneth Roberts-Wray, Commonwealth and Colonial Law (Stevens & Sons, 1966). p. 11, who argues that the Commonwealth includes ter­ ritories dependent upon a member of the Commonwealth. '* Ralph Carnegie, “The Importance of Constitutional Law in Jamaica’s Development" (1985) 9 (October) W1LJ (Special Issue Commemorating the 150th Anniversary of the Abolition of Slavery) 43, 43. 11 Hunter v Southam Jnc [1984] 2 S.C.R. 145 (SC Can) at 155, quoted in Matthew v State [2004] UKPC 33; (2004) W .I.R. 412; [2005] 1 A.C. 433; [2004] 3 W.L.R. 812; [2004] 4 L.R.C. 777 (PC TT) at [42], 14 Jennifer Nedelsky, “ Rcconceiving Rights as Relationships” (1993) 1 Rev of Constitutional Studies 1, 2 0 21. 15 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking, the IVest Indian Polity (Caribbean Law Publishing Co, 2002), p.38.

1-002

4

FOUNDATIONS

law. There are rules that are not in the written text that are “clearly consti­ tutional in functional effect.”16 Matters relating to governance, basic values and the powers ascribed to the organs and institutions of government are addressed in and complemented by a variety of statutes, constitutional con­ ventions, unwritten principles and judicial precedents. Together these make up Caribbean constitutional law.17 (b) Functions of the constitutions ( i) Establishes the institutions o f government

1-003

The constitutions authorise the exercise of power by governmental institu­ tions and they limit that exercise of power.18 The constitutions establish “the parameters within which the country will be governed” and create the multi­ tude of institutional structures of government that are designed to facilitate good governance and democracy.19 They also determine who will be officers of the various institutions of government, what their functions are and how they will be selected and supervised.20 Tensions arise from the diffusion of governmental power amongst different branches and actors. The constitu­ tions offer a guide to mediating such tensions and allow for orderly and deliberated change in governmental structures through constitutional reform where this is considered necessary. ( ii) Clarifies where sovereignty lies

1-004

Through their detailed provisions, Caribbean constitutions clarify where sovereignty lies.21 All but three of the independent states are constitutional monarchies in which executive authority is vested in the Queen represented by a Governor General. The latter has a mostly ceremonial role and true executive power is exercised by the Prime Minister and his or her Cabinet. In the independent countries, it may be more appropriate to conceive of the sovereign power of the state as lying with the people who exercise it through their representatives and democratic organs, as is stated in the Guyana Constitution.22 In the overseas territories, though many powers are delegated to the elected governments, the UK retains sovereign power over these territories.

16 Ralph Carnegie, “The Importance of Constitutional Law in Jamaica's Development” (1985) 9 (October) WILJ (Special Issue Commemorating the 150th Anniversary of the Abolition of Slavery) 43, 49. Carnegie describes these rules as the constitution with a little “c”, to distin­ guish it from the constitutional text which he described “the Constitution” with a big “C ”. 17 Lloyd Barnett, The Constitutional Law o f Jamaica (OUP. 1977), p.25. 18 Ruth Gavison, “W hat Belongs in a Constitution?” (2002) 13 Const Pol Econ 89, 90. See also Almee v DPP [1999] 2 A.C. 294; [1999] 2 W.L.R. 1305; [1999] 2 L.R.C. 676. 19 Whitfield v AG (1989) 44 W .I.R. 1 (SC Bah) at 19. 2,1 Ernest Young, “The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda” (2008) 10 J of Const L 399,400. 21 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Caribbean Law Publishing Co, 2002), pp.37, 53. 22 Guy Const art.9.

2. CAltlBHLAN CONSTITUTIONS AND f'ONS'l 11111'IONAI ( AW

5

( Hi ) B alan ces the r ig h ts o f p e r so n s a n d the in te r e s ts o f th e m a jo r ity

The constitutions impose limits on what the state can do and provide protec­ tions against governmental misconduct.23 They do so in part by defining the relationship between institutions of government, and also by safeguarding the rights of persons and elaborating on the duties of the state towards persons.24 Caribbean constitutions establish democratic institutions that make laws to facilitate the peace, order and good governance of the territory. The power of the democratic majority to make laws is tempered by constitutional chapters dealing with fundamental rights. Through these chapters, the constitutions determine the appropriate balance between the rights of individuals and, in some cases, collectives25 and the will of the majority.26 This balance is drawn very differently across Caribbean jurisdictions. Some fundamental rights are better secured than others, depending on the territory. The constitutions differ in who has access to constitutional remedies and some constitutions, on the face of it, give laws in force before a certain date or dealing with controversial issues pre-eminence over the provisions protecting fundamental rights.27

1 005

i iv ) Articulates core values and commitments2li

Caribbean constitutions are normative instruments that set out fundamental values and norms for their societies.29 These core values serve as “guide-posts leading into an uncertain future.”30 The preambles to Caribbean constitu­ tions and their chapters devoted to fundamental rights and freedoms most clearly enunciate the core norms that, according to Wit J of the Caribbean Court of Justice (CCJ), breathe “life into the clay of the more formal provi­ sions” and shape the latter’s interpretation.31 The main ideals that permeate Caribbean constitutions are the preservation of democracy and respect for the rule of law and the protection of human rights. The aim is to secure these as central planks of constitutionalism.

I 006

( v) Identifies the territory and who belongs

As the fundamental law, Caribbean constitutional law identifies who quali­ fies as a citizen or as someone who belongs to the jurisdiction. The chapters devoted to citizenship in Caribbean constitutions and the constitutional pro­ visions that identify which persons are entitled to freedom of movement arc 11 R i' Hughes [2002] UKPC 12; (2002) W.I.R. 156; [2002] 2 A.C. 259; [2002] 2 W.I .R. 1058; [2002] 2 L.R.C. 585 (PC SLU) at [29], ’4 Whitfield v A O’ (1989) 44 W.I.R. 1 (SC Bah) at 19 20. -J Recent constitutional reforms and their interpretation in Beli/e and Guyana confirm the protection of indigenous peoples as a collective. See Bze Const Preamble para.(c); Guy Const art.149(1; Cal v AG (2007) 71 W.I.R. 110 (SC Bze). 1(1 Pituler v R [2002] UKPC 46; [2003] 1 A.C. 620 (PC Bah) at [15]. 2 See the discussion of savings law clauses in below paras 5 021 5 025 and 9 018. ’s Ruth Gavison, "What Belongs in a Constitution” (2002) 13 Const Pol Econ 89, 97. AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104; [2007] 4 L.R.C. 199 (CCJ Bds) per Wit J at [18]. 30 Uissalk v AG (1971) 18 W.I.R. 379 (CA TT) at 407. 31 AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104; [2007] 4 L.R.C. 199 (Bds) at [19] per Wit J.

1-007

6

FOUNDATIONS

complemented by immigration and nationality laws. Together these deter­ mine who has the right to live in the territory, the full benefit of services pro­ vided by the state and of participation in the political community and in the economic life of that society. Caribbean constitutions also identify the terri­ tory and in some cases spell out its boundaries. The Anglophone Caribbean’s two continental members, Guyana and Belize, have faced boundary dis­ putes with neighbouring countries. Their constitutions explicitly identify and delimit the boundaries of the state.32 (c) Legal bases of the constitutions (i) The West Indies Acts and other foundational constitutional instruments 1-008

Most Anglophone Caribbean territories have been governed by several suc­ cessive written constitutions, each inaugurating a new phase of political and constitutional development. Although a single document can be identified as “the Constitution” breach Caribbean territory today, it does not stand com­ pletely alone. Typically that instrument has a relationship to colonial consti­ tutional instruments that advanced decolonisation or modified the status of non-independent territories. Colonial constitutions were introduced in differ­ ent ways. The most common method in the twentieth century was by Order in Council, a prerogative instrument made by and in the name of the British sovereign and issued on the advice of the sovereign’s Privy Council. Some constitutions were established by Letters Patent and Royal Instructions (also prerogative instruments), while others came into being by local ordinance or UK Act of Parliament.33 The British Settlements Act of 1887,34 which consolidated earlier laws enacted in 1843 and 1860, extended the law-making powers of the Crown in settled colonies. It provided a statutory basis for the Crown to make laws for the British settlements, including constitutions, in the interests of their “peace, order and good government”. The West Indies Act of 196235 and 196736 are the primary colonial legal foundation for Caribbean constitutions. The 1962 Act ended the West Indies Federation and gave the UK Parliament power to establish new forms of government in the Caribbean. It became the legal basis for many Caribbean constitutions, both in independent states and overseas territories, since the Cayman Islands, Montserrat and the Turks and Caicos Islands were part of the Federation.37 The West Indies Act 1967 created associated states in the Eastern Caribbean and made provision for termination of that status. It is 32 See e.g. Bze Const s. 1(2) states that “ Belize comprises the land and sea areas defined in Seh.l to this Constitution, which immediately before Independence Day constituted the colony of Belize.” Guy Const art.2 provides that “[t]he territory and the state comprises the areas that immediately before the commencement of this Constitution were comprised in the area of Guyana together with such other areas as may be declared by Act of Parliament to form part of the territory of the State”. 33 T. Olawale Elias, British Colonial Luw: A Comparative Study o f the Interaction between English and Local Laws in British Dependencies (Stevens & Sons, 1962), p.39. 34 British Settlements Act 1887 (c.54), UK. 35 West Indies Act 1962 (c.19), UK. 36 West Indies Act 1967 (c.4), UK. 37 Ian Hendry and Susan Dickson, British Overseas Territories Law (Hart Publishing, 2011), P-17.

2. ( ARIHBLAN C’ONS'iTl LJ I IONS AND CONSTITIITIONAI LAW

7

ihc authorising power for the UK Orders in Council giving rise to independ­ ence constitutions in the six OECS countries. In the case of Belize, the Belize Act 198138 authorised the promulgation of an independence Constitution by Order in Council. (ii) UK Independence Acts

Independence Acts enacted at Westminster for each territory gave effect to political independence. These Acts altered the status of the territory in English law, giving the local legislature the power to make laws repugnant to Acts of the UK Parliament and ending the power of that legislature to make laws for the territory.39 The first independence Act, the Jamaica Independence Act 1962 provides that

1 009

“[n]o Act of the Parliament of the UK passed on or after the appointed day shall extend or be deemed to extend, to Jamaica as part of the law thereof’.40 The in d e p e n d e n c e A c ts also e n s u re d t h a t th e C o lo n ia l L a w s V alid ity A c t enacted by th e I m p e r ia l P a r lia m e n t in 1865 n o lo n g e r h a d effect. T h e C o lo n ia l Laws V alid ity A c t p r o v id e d t h a t laws p a s s e d b y a c o lo n ia l legislature w ere invalid if they w ere r e p u g n a n t to UK legislation. T h e I n d e p e n d e n c e A cts w ere followed by U K O r d e rs in C o u n c il p ro m u l g a ti n g in d e p e n d e n c e c o n s titu tio n s .

(Hi) UK Orders in Council from 1962

The legal foundation for all Caribbean constitutions, except in the republics of Guyana and Trinidad and Tobago, and arguably Belize, is a UK Order in Council. These statutory instruments became the typical mode for the UK to introduce constitutions. The Orders are made by and in the name of the sovereign and issued on the advice of the sovereign’s Privy Council. They are made pursuant to either an Act of Parliament or prerogative powers.41 Unlike Acts of the UK Parliament, Orders in Council do not undergo debate in both Houses of Parliament or carry the possibility of amendment consequent upon such debates. The legislative process for Orders in Council preserved the origi­ nal text and they came into effect immediately after being made. In devolving power and decolonisation, they were preferred to Acts of Parliament for their “speed and finality”.42 It is also thought that they ensured that “delicately bal­ anced compromises, arrived at after strenuous negotiation” between colonial leaders and the UK Government were not upset.43 ,s Bc!i7c Act 1981 (c.52), UK. S,A. de Smith. ‘T h e Independence of G hana” (1957) 20 MLR 347. 347. Section 1(2) of the Jamaica Independence Act 1962 (c.40), UK. Sir Kenneth Roberts-Wray, “The Legal Machinery for the Transition from Dependence to Independence”, in J.N.D. Anderson. Changing Law in Developing Countries (F.A. Praegcr. 1963), pp.43, 51. 4’ S.A. de Smith, “The Independence of G hana” (1957) 20 MLR 347, 356. See also T. Olavvale Elias, British Colonial Law: A Comparative Study of the Interaction between English and Local Laws in British Dependencies (Stevens & Sons, 1962), p.40. 41 de Smith, above. 356. 49 411 41

1-010

8

l'OlJNDATIONS

( iv) Caribbean A cts o f Parliament

1-011

Acts of their own parliaments are now the legal bases for the constitutions of Guyana, Trinidad and Tobago, and arguably Belize. Guyana became a republic in 1970, following the procedures laid down in the 1966 independ­ ence Constitution. In 1978, the Constitution was amended to allow a new constitution to be promulgated without a referendum vote. That same year the National Assembly reconstituted itself as a Constituent Assembly with responsibility for drafting the new Constitution.44The Constitution of the Co­ operative Republic of Guyana 1980 repealed the Guyana Independence Act and Order in Council of 1966 and brought into effect the new Constitution. The Constitution of the Republic of Trinidad and Tobago Act 1976 both established a republic and introduced a new Constitution. The legal basis for the new Constitution is s.38 of the 1962 Constitution which makes provision for amendment to the Constitution. It provides for the repeal of the 1962 Constitution and the revocation of the 1962 Order in Council.45 In Belize, Her Majesty by Order in Council made provision for a Constitution for the independent Belize in July 1981. The National Assembly then enacted the new Constitution as the Belize Constitution A ct46 It is this law that is consid­ ered to be the Constitution of Belize. (d) The approach of this chapter

1-012

Conventionally, the axis for modern Caribbean constitutional law has been political independence and the constitutions it inaugurated. This outlook is both ahistorical and partial. Grand narratives of independence exclude Caribbean overseas territories of the UK that fall outside its purview. Most of these territories had been part of the decolonisation process but did not proceed to independence. More importantly, a liberation account of inde­ pendence as a centrepiece of Caribbean constitutions is truncated and evades the tragic dimensions of the Caribbean’s constitutional law and the consti­ tutional continuities between the colonial and the modern. Kirk Meighoo correctly notes that “the West Indian System of Government and Politics is 400 years, not 40 years, old” and is one “tied to the history of slavery and colonialism” 47 The remainder of this chapter takes a longer historical view of the foundations of Caribbean constitutional law, beginning with the precolo­ nial period and inception of colonisation. The end of this chapter reflects on their legacy in the context of modern Caribbean constitutionalism.

44 M. Shahabudeen, Constitutional Development in Guyana 1621 1978 (Guyana Printers Ltd, 1978), p.572. 45 Constitution of the Republic ofTrinidad and Tobago Act 1976 s.3. See M argaret Demerieux, Trinidad and Tobago: International Encyclopaedia of Laws (Kluwer Law International, 2002), pp.22 24. 46 Belize Constitution Act 1981-14. See Sir Fred Phillips, Commonwealth Caribbean Constitutional Law (Cavendish Publishing, 2002) p.261. 47 Kirk Meighoo, “ From Legislative Council to House of Representatives: Promoting or Hindering Democracy?” in Parliament ofTrinidad and Tobago, Evolution o f a Nation: Trinidad and Tobago at Fifty (Hansib Publications, 2012), pp.25, 27 -28.

L PRE-TWHNTIETII CENTURY CONSTITUTIONAL DEVELOPMENT

9

3. Pre-Twentieth Century Constitutional Development

(a) Overview In the period between 1500 and the early nineteenth century, European nations battled for and traded dominion over Caribbean territories, decimated indig­ enous populations, settled colonies with whites initially, and transitioned to economies dominated by agricultural production and dependent on African slave labour. What became the territories of British Caribbean had “entan­ gled” interconnected imperial histories of multiple and overlapping colonisa­ tions.48 They were anglicised at different periods, some through “settlement” and others by “conquest” or cession from other European nations. European imperialism and the plantation economies it created—supported by African slave and freed labour, and indentured workers, mostly Indians—entrenched extreme social, economic and racial inequalities in the pre-twentieth century Anglophone Caribbean. British colonial interests and the constant anxieties of local white elites about maintaining their power and property in the midst of the disenfranchised and dehumanised majorities influenced the forms of governance they either insisted on or acquiesced to between the seventeenth and nineteenth centuries.

1-013

(b) C o n q u e s ts , s e ttle m e n ts a n d th e e s ta b lis h m e n t o f c o lo n ia l g o v e r n m e n ts

The early Caribbean peoples had varying forms of social and political organi­ sation and occupied the Caribbean region for centuries prior to the entry of Europeans in the Caribbean.49 The heaviest concentrations of indigenous peoples were found in Central and South America. There was Maya civilisa­ tion in Belize dating back to 1500 BC. The Tainos dominated the Greater Antilles and were the first indigenous community to have contact with Spanish colonisers. Tainos were organised through chiefdoms or cacicazgos.50 Their customary law provided for a flexible system of succession in leadership.51 I he Kalinago peoples are thought to be the last indigenous peoples to come to the Caribbean region, dating from about 1000 AD. They could be found throughout the islands, but more so in the Lesser Antilles.52 Some islands like Barbados and Antigua had marginal indigenous populations.53 In the precolonial period there was interaction and movement between the islands and also with the mainland that included social and trade networks.54 In the first two centuries of colonisation, indigenous peoples battled with the 4R Eliga Gould, “ Entangled Histories, Entangled Worlds: The English-Speaking Atlantic as a Spanish Periphery'’ (2007) 112 Am Hist Rev 764. 49 L. Antonio Curet, “Issues on the Diversity and Emergence of Middle-Range Societies of the Ancient Caribbean: A Critique” (2003) 11 J of Archaeological Research 1,17. s" L. Antonio Curet. “The Chief is Dead, Long Live . . . Who? Descent and Succession in the Protohistoric Chiefdoms of the Greater Antilles” (2002) 49 Ethnohistory 259. 41 Curet, “The Chief is Dead, Long Live... Who?”, above, 273. 41 Hilary McD. Beckles. “ Kalinago (Carib) Resistance to European Colonisation of the Caribbean” (1992) 38 Carib Q 1. 41 E'ranklin Knight, The Caribbean: The Genesis o f a Fragmented Nationalism. 2 edn (OUP, 1990), p .7, 44 L. Antoinio Curet, “Issues on the Diversity and Emergence of Middle-Range Societies of the Ancient Caribbean: A Critique” (2003) 11 J of Archaeological Research 1,14.

1-014

10

FOUNDATIONS

various European colonisers in the Caribbean for autonomy.55 They were very negatively impacted by disease, war and the loss of their lands during the early colonial period.56 Their contact with Europeans also included adapta­ tion, trading arrangements and social integration.57 From the arrival of the Spanish in the Caribbean in 1492 until the early nineteenth century the region was beset by “warfare and bloodshed”.58 During this period of European rivalries and wars, Caribbean territories switched colonial hands between Spain, Britain, France and the Dutch.59The British settlement of the Caribbean started in the first half of the seventeenth century in St. Kitts (1624), Bermuda (1612), Barbados (1627), Nevis (1628), Montserrat (1632) and Antigua (1632). Early attempts by the British to settle Guiana, Grenada and St. Lucia failed. In the mid-seventeenth century, Jamaica (1655) was conquered. In the mid to late seventeenth century the Bahamas (1648), Anguilla (1650) and Tortola (1672) were settled by the British. By 1670, Spain had recognised British possession of the Cayman Islands, among others, in the Godolphin Treaty. English capitalists and noblemen set up these early English settlements in the Caribbean. Many obtained royal approval for their initiatives after the fact. Notably, on July 2, 1627, the Earl of Carlisle received letters patent that named him the Lord Proprietor of the “Caribee Islands” from 10 to 20 degrees north latitude and gave him the power to make laws through a Governor, “with the consent and approbation of the freeholders”.60 In 1629, Carlisle in turn issued a commis­ sion to Thomas Warner as Governor to Barbados, giving him the author­ ity to do “all . . . things” for the “advancement and establishing the public good of the said plantation . . . according to the laws and laudable customs of England.”61 Not all these early settlements developed immediately into fully fledged colonies, as with the Bahamas which is identified as formally becoming a colony in 1783. Kenneth Roberts-Wray describes the royal prerogative as the “lifeblood” of the British Empire since it was the source of power to make the treaties that led to the acquisition of colonies and was necessary to authorise or recognise settled colonies.62 In conquered or ceded colonies the prerogative had an even greater role and was a mechanism for making laws, including constitu­ tions notably through Orders in Council. Britain’s empire in the Caribbean was consolidated in the late eighteenth and early nineteenth centuries during 55 Hilary McD Beckles, “Kalinago (Carib) Resistance to European Colonisation of the Caribbean” (1992) 38 Carib Q 1. 56 Robert Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (OUP, 1990), pp.82-85. 57 Lennox Honychurch, “Crossroads in the Caribbean: A Site of Encounter and Exchange on Dominica” (1997) 28 World Archaeology (Culture Contact and Colonialism) 291, 301. 58 Sir Alan Burns, “Towards a Caribbean Federation” October (1955) Foreign Affairs 128, 131. 59 Jamaica and Trinidad and Tobago were originally claimed by the Spanish. Dominica, St. Lucia, St. Vincent and Grenada had been colonised by the French. For a period, Tobago and Anguilla were part of the Dutch Caribbean Empire. 6n Letters Patent in relation to the Caribee Islands granted to Earl Carlisle, July 2, 1627, quoted in Frederick Spurdle, Early West Indian Government Showing the Progress o f Government in Barbados, Jamaica and the Leeward Islands, 1660 1783 (Frederick Spurdle, 1960), p. 8 . 61 Quoted above, p.9. 62 Kenneth Roberts-Wray, Commonwealth and Colonial Law (Stevens & Sons, 1966), p. 150.

t I ' R I - 1 V V I M I'll n U T N I I I R Y

roN STnU TIO N A l

DHVI I O P M I - N I

the "Age' o f R e v o l u t i o n ” . A s u b s ta n tia l n u m b e r o f te rrito rie s w as a c q u ire d b\ c o n q u e s t fro m o th e r E u r o p e a n n a tio n s , a n d th e re w as c o n s id e r a b le b a c k a n d fo rth o f te rr ito r ie s b etw ee n these n a tio n s . U ltim a te ly G r e n a d a , the G re n a d in e s a n d St. V in c e n t w ere ced e d in th e T r e a ty o f Versailles in 1783.63 1 css co n sid e re d h as b een th e ro le play ed by in d ig e n o u s peo ples in resisting im perial c o n tro l d u r in g this p e r io d .64 In th e p erio d o f co lo n ia l e x p a n s io n , St. Vincent h a d b e c o m e a " C a r i b R e p u b l ic ” w hich i n c o r p o r a te d ru n a w a y A fricans from n e a rb y co lo n ies a n d fiercely o p p o s e d c o lo n ia l c o n tro l a n d British ru le.6'1 l-’v e n tu a lly the British c o n q u e r e d th e C arib s. B etw een 1793 a n d 1X15, as a result o f th e R e v o lu tio n a r y W a r a n d th e N a p o le o n ic W a r, B ritain acq uired St. 1 ucia a n d T o b a g o fr o m F r a n c e , T r i n id a d fro m S p a in , a n d th e G uian ese c o lo n ics f r o m th e N e th e r la n d s . T h e British a n d th e S p a n is h s tr u g ­ gled over s e ttle m e n t in w h a t is n o w Belize for o v er a c e n tu ry . T h ough v a rio u s treaties reco gn ised th e rig h t o f th e British to cu t lo g w o o d , a n d g r a n ts w ere m ade by the C r o w n in th e early 1800s, it w as n o t until a r o u n d 1862 th a t a colony o f B ritish H o n d u r a s w as fo rm a lly reco g n ise d .66 S o m e o f th e p reco lo nial legal system su rvived British c o lo n is a tio n th r o u g h th e a p p o i n t m e n t o f village h e a d m e n , especially a m o n g th e M a y a s , alcaldes , w h o u n d e r t o o k the fu nctions o f law. a d m in is tr a tio n , police a n d social services.6' In settled c o lo n ie s like B a r b a d o s , th e L e e w a rd s , B e r m u d a a n d the B aham as, it w a s a s s u m e d t h a t th e E n g lish c a rr ie d th e ir law w ith th e m as their p e rs o n a l la w a n d th a t they h a d th e rig h t to m a k e law s fo r th e m selves.6s A l th o u g h J a m a i c a w as o b ta in e d t h r o u g h c o n q u e s t fr o m S p a in , it w as tre a te d as a settled c o lo n y o n th e in c o rre c t r e a s o n in g t h a t th e S p a n ia r d s had iled b efo re o c c u p a tio n by th e B ritis h .69 W ith c o n q u e r e d a n d ced e d t e r ­ ritories. laws t h a t existed a t th e tim e o f c o n q u e s t c o n t in u e d in force un til explicitly t e r m i n a t e d . 70 It w as u n d e r s t o o d t h a t th e C ro w n c o u ld legislate fo r such co lo n ies t h r o u g h th e exercise o f th e ro y a l p re ro g a tiv e . T h is allo w ed laws to be m a d e t h r o u g h a n O r d e r in C o u n c il w ith o u t th e need f o r a n A ct

S ee D .L . N id d ric. " E ig h te e n t h -C e n t u r y S ettle m en t in the British C a r ib b ea n " (1 9 6 6 ) 4 0 T ran saction s o f the Institute o f British G e o g r a p h e r s 67. J Julie C h u n K im , " I he C a rib s o f St. V incent and I n d ig e n o u s R e sis ta n c e d u r in g the A g e o f R e volu tion s" (201 3) 11 Turly A m e r ic a n Studies: A n Interdisciplinary Jou rn al 117. K im . a b o v e . "" See I ti for British Honduras \ Bristow (1 8 8 0 ) 6 L.R . A p p . Cas. 143 (P C Br l l o n d ) . 1'. O la w a le Lilias, British Colonial Law: A Comparative Study of the Interaction between liielisli and I oral Laws in British Dependencies (S t e v e n s & S o n s . 1962). p. 10. T h e S p a n is h term "alcalde" referred to a m a y o r o r the o llicial w ith prim ary ju dicial and a d m in istra tiv e fu n ctio n s in a tow n or c o m m u n ity . See Keith P a le h e lt, " T h e R e c e p t io n o f Law in the W e st Indies" [1973] JLJ 17; Sir W illiam Ihc Modem Commonwealth (B u tt e r w o r th s . 1983). p p . 7 10: R o s e - M a r i e A n to in e . Common wealth Caribbean Law and Legal System ( C a v e n d is h P u b lish in g. 1999), p p . 58 60. Camnhcll i- //rz// (1 7 7 4 ) 1 C o w p . 2 04 at 212: (1 7 7 4 ) 98 F .R . 1045- (1 7 7 4 ) L o l h 653; (1 7 7 4 ) 11 -"'58 17 /4] All T .R . R ep. 25 2 ( K B ) . Se e K e n n e t h R o b e r ts -W r a y . Commonwealth and Colonial Law (S tev en s & S o n s , 1966). pp. 1 1 . 4 6 47.

Dale

A s a result, there are still re m n a n ts o f R o n u m - D u l c h law bein g a p p lied in G u y a n a ' s p r o p ­ erty law and a civil c o d e in o p e r a tio n in St. I.ucia. v estiges o f la w s b ein g a p p lied in th o s e ter­ ritories at the time they w ere c o n q u e r e d by the British. See D o r c a s W h ite . " S o m e P r o b le m s o f a Hybrid L egal S ystem : A C a s e S tu d y o f St. I ucia" (1 9 8 1 ) 30 1C LQ 862; K e n n y A n t h o n y . " T he Mixed Legal S y ste m o f S aint I.ucia: Its Lisiablishmenl and D e c lin e " ( P h D T h e sis . U n iv e r sity o f B irm ingham . 1988).

1-015

12

FOUNDATIONS

of the British Parliament.71 For stability, Spanish law and institutions were kept in Trinidad for some time after conquest, as was the case with Dutch law and institutions in the Guianas and French law and institutions in St. Lucia.72 If the colony was granted an assembly, as was Grenada, the Crown lost the power to legislate, unless that right was specifically reserved to it.73 The government of the early “settled” British colonies consisted of a Governor exercising executive power on behalf of the Crown, a legislative council nominated by the Governor and the dominant elected lower House of Assembly. The franchise to vote for and participate in the assemblies was restricted to wealthy white male landowners. This form of colonial rule involved a “divorce of executive and legislative power”.74 It was termed the “old representative system” because the elected members of the legislature commanded a majority.75 For the most part, a form of Crown colony government was introduced in colonies acquired between 1793 and 1815. In this form of government, a colonial Governor exercised enormous control and directly ruled the colony with a nominated legislature made up of official and unofficial members. The southern Caribbean—Trinidad, Grenada and the Guianas have been labelled Britain’s “last Atlantic frontier”.76 They were not typified by the solid plantation cultures of the older colonies,77 and early British colonial governance, particularly in Trinidad, was draconian and characterised by a “jurisprudence of emergency” and extra-legal violence.78 When Trinidad became a newly-conquered British territory in 1797, it was administered solely by a Governor and in a strongly authoritarian manner, beginning with the first Governor, the infamous Thomas Picton. He resisted the introduction of a colonial assembly on the ground that “the elements of society are too different to admit similar composition to those of the Mother Country”.79 Invoking racial difference, he described Trinidad as a place “where passions incident to human nature, operate with greater force, and under less moral restraint than in the Old Countries”.80 A single-chamber legislative council was set up in the nineteenth century in Trinidad, made up of the Governor and official members, who comprised a majority, and nominated members. The British adapted the Dutch system of government in its South American colonies. The Guianese colonies of Berbice, Demerara and Essequibo 71 See T. Arvind, ‘“Though it Shocks One Very Much’: Formalism and Pragmatism in the Zong and Bancoult” (2012) 32 OJLS 113. 12 James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atluntic during the Age of Revolution (CUP, 2012), pp,123 24. 73 Campbell v Hall (1774) 1 Cowp. 204 at 212; (1774) 98 E.R. 1045; (1774) Lofft 655; [1558 1774] All E.R. Rep. 252 (KB). 74 Colin Hughes, ‘‘Semi-Responsible Government in the British West Indies” (1953) 68 Political Science Q 338, 338. 75 H.A. Will, “Problems of Constitutional Reform in Jamaica, Mauritius and Trinidad, 1880—1895”(1966) 81 Eng Hist Rev 693, 694. 76 Kit Candlin, The Last Caribbean Frontier, 1795 1815 (Palgrave Macmillan, 2012). p.xxi. 77 Candlin, above, p. 175. 78 James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (CUP, 2012), pp.9, 103. 79 Picton quoted in Epstein, above, p. 125. See also Kit Candlin, The Last Caribbean Frontier. 1795-1815 (Palgrave Macmillan, 2012). 80 Epstein, above.

3. PRE-TWENTIETH CENTURY CONSTITUTIONAL DEVELOPMENT

13

surrendered to Britain in 1796. The colonies were briefly returned to the Dutch, but in 1803 they were recaptured by the British with an agreement that the laws in each colony would remain in force, and so would the constituted authorities, public officers and judicial officers until His Majesty’s pleasure be known.81 The three colonies were unified in 1831 and became British Guiana. The colony maintained the Dutch governance structure of two Colleges com­ prised of officials chosen from a narrow electorate. The College of Financial Representatives had responsibility for raising revenue with the Governor and Court of Policy. The College of Keizers made nominations for the Court of Policy. The latter exercised both legislative and executive functions along with the Governor. (c) Joint colonial administration A notable feature of British colonial governance was its pragmatism. For easier colonial administration, particularly in smaller territories, the British grouped various islands together. There was constant readjustment of these arrangements. The groupings of Leeward and Windward Islands evolved with changing configurations of islands over the centuries.82 The earliest amalgamation was the “Leeward Charibbee islands” which initially com­ prised of Antigua, Barbados, St. Kitts, Nevis, Montserrat, Anguilla and the British Virgin Islands. Until 1671, Barbados was the seat for these Leeward Islands. Thereafter there existed the British Leeward Island Colony made up of four colonies—St. Kitts, Nevis, Antigua and Montserrat. They had sepa­ rate assemblies headed by deputy Governors and a general assembly with law-making powers for the entire colony, which met infrequently and made few laws.83 A later Leeward Islands Federation in 1871 comprised five presi­ dencies: Antigua (the headquarters), St. Kitts-Nevis, Dominica, Montserrat and the Virgin Islands. It was a measure designed to reduce the costs of colonial administration in these very small territories and it lasted until 1956. There was one Governor based in Antigua, a limited federal legislature, a single Chief Justice and a common Supreme Court.84 In the newer colonies, a Windward grouping developed. In 1763, a common Governor was appointed for Grenada, Dominica, Tobago, and St. Vincent and the Grenadines, with general assemblies in each and a central headquarters in Grenada. This arrangement did not last long. In 1833, a Windward Islands Federation was created which covered Barbados, Grenada, St. Vincent, Tobago and later St. Lucia. The amalgamation lasted until 1885 when Barbados was given its own Governor. Tobago ceased being a part of the Windward group in 1899 when it was joined as a ward of the unified colony of Trinidad and Tobago. Dominica was originally part of the Leeward group but joined the Windward group in 1940. 81 M. Shahabudcen, Constitutional Development in Guyana 1621-1978 (Guyana Printers Ltd, 1978), pp.16, 61. 82 See Bentley Gibbs, ‘‘A Brief Constitutional History of St. Kitts-Nevis, St. Vincent, St. Lucia and Dominica” (1978) 4(2) ISER Bulletin of Eastern Caribbean Affairs 1. 83 See C.S.S. Higham, “The General Assembly of the Leeward Islands” (1926) 41 Eng Hist Rev 190. 84 Bridget Brcreton, Law, Justice and Empire: The Colonial Career of John Gorrie 1829 1892 (The Press UWI, 1997), p.193.

1-016

14

FOUNDATIONS

Britain’s western and largest island colony, Jamaica, served as a hub for colonial administration in the Cayman Islands, British Honduras and the Turks and Caicos Islands. In 1863 the Cayman Islands became a depend­ ency of Jamaica, an arrangement that continued until 1958 when a sepa­ rate government was created. There was a loose association between British Honduras and Jamaica up to 1884.85 The Turks and Caicos Islands were annexed to Jamaica in 1873 until 1958 when a separate government was created. (d) The struggle over colonial governance 1-017

Early British colonial governance in the Caribbean was rather decentralised with local political institutions assuming a prominent role in decision-making about the colonies.86 This was less a result of design or clear rules, and more a pragmatic response to the challenges of governing from afar—and the result of fierce activism by the early white colonists for control over colonial gov­ ernance. Well into the nineteenth century, Caribbean colonial politics and constitutional law revolved around “a set of arguments” and confrontations about the extent of imperial control over colonial laws.87 These questions were never resolved and were at times regarded by the Colonial Office as “much too delicate to be mooted”.88 In principle, the British doctrine of parliamentary sovereignty meanl that the imperial Parliament was sovereign over colonial legislatures and had the power to legislate for the colonies. The British Parliamenl rarely did so. Instead, the imperial government regularly reviewed colo­ nial legislation and determined whether the laws would be allowed, disallowed or needed to be amended.89 In the early colonial period, this power was held by the Committee of the Privy Council for Trade anc Plantations, and the Board of Trade, then by the nineteenth century was exercised by the Colonial Office.90 Disallowance was an extreme and ran outcome.91 In some cases the Colonial Office suspended its approval unti various amendments had been made to the colonial law. A measure o. “judicial review” by local and Privy Council was also possible but agair rarely exercised.92 A principle developed that colonial legislatures could enact laws suited tc local circumstances but should not pass laws that were repugnant to the law: 85 Rafael Cox Alomar, Revisiting the Transatlantic Triangle: The Constitutional Decolonizatm of the Eastern Caribbean (Ian Randle Publishers, 2009), p. 5. 86 Mindie Lazarus-Black, Legitimate Acts and Illegal Encounters: Law and Society in Antigu, and Barbuda (Smithsonian Press, 1994). pp. 18 19. 87 Sarah M ary Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empir (Harvard University Press, 2004), p.39. See Al Sabah v Grupo Torras SA and Another [200* UK PC 1; (2005) 65 W .I.R. 61 (PC Cl) at [12] [14] on law-making in the imperial context. 88 D.J. Murray, The West Indies and the Development o f Colonial Government (Clarcndo Press, 1965), p .131, quoted in Mary Reckord, “The Colonial Office and the Abolition of Slavery (1971) XIV 4 Historical Journal 723, 724. 89 D.B. Swinfen, The Imperial Control of Colonial Legislation 1813 1865: A Study of Britis Policy towards Colonial Legislative Powers (Clarendon Press, 1970). 90 Swinfen, above, p. 11. 91 Swinfen, above, p.41. 92 Swinfen, above.

V l'Rh-1 W1N1I1 r i l ( F N ltJR Y CUNSTI rUTIONAL DFVELOPMFNT

15

o f E n g la n d .93 I t w a s n e v e r very c lear ex actly w h a t this d o c trin e o f r e p u g n a n c y m eant, a n d th e a m b ig u ity g e n e r a te d o n g o in g d e b a te s a n d a r g u m e n ts a b o u t the legal r e la tio n s h ip b e tw e e n th e c o lo n ies a n d th e C r o w n . 94 L ik e A m e r ic a n rev olutio nists, m a n y C a r i b b e a n co lo n is ts a t ta c k e d th e c la im t h a t th e Im p e ria l P a rlia m e n t w a s a s o v ereig n la w - m a k in g b o d y f o r th e e m p ir e .95 A s ea rly as 1651 th e B a r b a d o s A s s e m b ly re je cted th e rig h t o f th e B ritish P a r lia m e n t to legislate f o r th e isla n d , in sistin g t h a t “ le g islatio n w i t h o u t r e p r e s e n ta tio n w as a v io latio n o f th e r ig h ts o f E n g lis h m e n .” 96 C a r i b b e a n is la n d s also o p p o s e d the ta x a tio n elfected b y th e im p e ria l S ta m p A c t o f 1765, th e la w t h a t gave rise to o p p o s itio n a n d rev o lt in th e 13 A m e r ic a n c o lo n ie s .97 A l th o u g h so m e C a rib b e a n is la n d s c o m p lie d w ith th e law, th e c o lo n ies stressed th e p rin cip le that taxes s h o u ld be raised t h r o u g h th e lo cal assem b lies a n d d e s c rib e d th e law “ as a f o r m o f t y r a n n y t h a t t r e a te d th e co lo n ies ‘as Slaves, to a r b it r a r y p o w e r . ” 98 T h e early w h ite co lo n is ts in th e B ritish C a r i b b e a n es ta b lis h e d c o lo n ia l assemblies t h a t im ita te d th e p r o c e d u r e s o f th e B ritish H o u s e o f C o m m o n s and claim ed sim ilar r ig h ts a n d p rivileges.99 T h e y c laim e d th e in h e re n t rig h ts o f British subjects a n d p rin c ip le s o f th e E n g lish C o n s tit u ti o n to ju s tify fre e d o m from in te rfe re n c e b y th e C r o w n a n d B ritish P a r l i a m e n t . 100 T h e y d e m a n d e d all the c o n s titu tio n a l liberties t h a t w ere c o m m o n to E n g lis h m e n o n th e basis t h a t these w ere e n s h r in e d in th e c o m m o n law , th e M a g n a C a r t a a n d th e r e v o lu ­ tionary s e ttle m e n t o f 1688.101 F o r B ry a n E d w a r d s , a m e m b e r o f th e J a m a i c a colonial a s s e m b ly a n d la te r th e H o u s e o f C o m m o n s o n his r e tu r n to E n g la n d , the English C o n s t i t u t i o n p r o v id e d “ a system o f prin cip les t r a n s m itt e d d o w n to us fro m tim e im m e m o r ia l, a n d e s ta b lis h e d in t o c o m m o n r ig h ts ” in c lu d in g “the rig h ts o f p e r s o n a l lib erty a n d p riv a te p r o p e r ty , th e m o d e o f tria l by ju ry , th e f re e d o m o f w o r s h i p p in g o u r C r e a t o r in w h a t m a n n e r w e th in k best, a s h a re in th e le g islatu re . . ,” 102 93 Sarah Mary Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Harvard University Press. 2004). 94 Bilder. above. Robert Livingston Schuyler, “The Constitutional Claims of the British West Indies" (1925) 40 Political Science Q 1, 3. Quoted in Selwyn Carrington, “The American Revolution and the Sugar Colonies, 1775 1783" in Jack Greene and J.R. Pole (eds), A Companion to the American Revolution (Blackwell Publishers, 2000), pp.515, 519. Andiew J. O'Shaughnessy, “The Stamp Act Crisis in the British Caribbean" (1994) 51 William and Mary Q Third Series 203. w Samuel Martin (a former speaker of the Antigua Assembly) May 30, 1766 and August 5, 1765. Ass MSS 41347, Brit, Lib. quoted in O'Shaughnessy, above, p.207. 99 Ronald Sires, “Government in the British West Indies: An Historical Outline" 6(2) SES (Special Issues: Federation of the West Indies) 109, 112. See also Agnes Whitson, The Constitutional Development o f Jamaica 1660 to 1729 (Manchester University Press, 1929) pp.39 40; Jack Greene, “Political Mimesis: A Consideration of the Historical and Cultural Roots of Legislative Behavior in the British Colonies in the Eighteenth Century" (1969) 75 Am Hist Rev 337, 351. 1911 Robert Livingston Schuyler, “The Constitutional Claims of the British West Indies" (1925) Political Science Q 1, 27. See also Liam Seamus O'Melinn, “The American Revolution and Constitutionalism in the Seventeenth Century in the West Indies” (1995) 95 Colum LR 104. "" Andrew J. O’Shaughnessy, “The Stamp Act Crisis in the British Caribbean" (1994) 51 William and Mary Q Third Series 203, 206. Bryan Edwards, The History. Civil and Commercial, o f the British Colonies in the

1-018

16

FOUNDATIONS

Undue interference by the Crown or British Parliament repre­ sented a form of arbitrary government and was deemed a threat to the rule of law. The assemblies also sought full control over the composition, proceedings and privileges of the assemblies, much like the House of Commons based in London.103 During the eighteenth century, colonial assemblies invoked par­ liamentary privileges against their own members, the executive and public.104 These included freedom of speech within the legislature, freedom from arrest during sessions, full investigatory powers and control over its officers.105 The Jamaica House of Assembly in 1766 asserted that no court had the power to determine its privileges and that only the House could judge its own privileg­ es.106 It claimed the right to punish its members and members of the general public for contempt, as part of its inherent jurisdiction as a legislative body similar in power and jurisdiction to the House of Commons. In 1836, the Privy Council decided the case of Beaumont v Barrett, 107 an appeal from Jamaica. It concluded that the Assembly did have an inherent power to punish for contempts that went beyond a direct obstruction to its course of proceedings. Within a decade, the Privy Council resiled from that position,108 and this was confirmed in the 1866 Dominican case before the Privy Council, Doyle v Falconer.109The Privy Council distinguished between the power to commit for contempt, which it described as a judicial power, and the power to remove an obstruction which is needed for the legislature’s self-preservation.110 The day-to-day struggle for power by colonial assemblies was centred on the executive branch and its primary representative, colonial Governors, who the colonial elites viewed as impediments to the full exercise of their rights as Englishmen.111 The assemblies made many efforts to control the Governors, especially through their legislative power to tax and appropriate funds. The question of who had the power to tax in the colonies was at the centre of the seminal case, Campbell v Hall.112 A taxpayer sought the return of tax West Indies (J. Stockdale, 1793), Vol II, pp.341-343, quoted in Robert Livingston Schuyler “The Constitutional Claims of the British West Indies” (1925) Pol Sci Q 1, 24. 103 Selwyn Carrington, “The American Revolution and the Sugar Colonies, 1775 1783” ir Jack Greene, and J.R. Pole (eds), /( Companion to the American Revolution (Blackwell Publishers 2000) pp.515, 519-20. 104 W.L. Bum, “Parliamentary Privilege in Jamaica” (1936) 18 J Comp Leg & Inti L Thirc Series 226. 1115 Jack Greene, “Political Mimesis: A Consideration of the Historical and Cultural Roots o Legislative Behavior in the British Colonies in the Eighteenth Century” (1969) 75 Am His Re1 337, 348. 106 The Privileges of the Island o f Jamaica Vindicated with an Imperial Narrative o f the hit Dispute between the Governor and House o f Representatives, Upon the Case of John Olyphun Esq, A Member of that House (London: 1766) cited in W.L. Burn, “Parliamentary Privilege ii Jamaica” (1936) 18 J Comp Leg & Inti L Third Series 226,229. 107 (1836) 1 Moo. P.C. 59; (1836) 12 E.R. 733 (PC Jam). 108 Kielley v Carson (1842) 13 E.R. 225; (1842) 4 Moo. P.C. 63 (PC Nfld). 109 (1866) 15 W.R. 366; (1866) L.R. 1 P.C. 328; (1866) 4 Moo. P.C.N.S. 203; (1866) 36 L.J.P.C 33 (PC Dom). 110 W.L. Bum, “Parliamentary Privilege in Jamaica” (1936) 18 J Comp Leg & Inti L Thir Series 226, 234. 111 Jack Greene, “Political Mimesis: A Consideration of the Historical and Cultural Roots c Legislative Behavior in the British Colonies in the Eighteenth Century” (1969) 75 Am His Re 349 353 54. " ’2 (1774) 1 Cowp. 204 (KB).

.1. PRI'-'t W IN t lh'L II CHN t IJRY ( 'ONS1111) HON AI DEVEI OPMEN f

17

levied by the Governor of Grenada. In general, the British sovereign had the prerogative power to enact laws, including constitutions, for conquered and ceded colonies.113 Grenada was a conquered colony and the King promised by royal proclamation that Grenada would be ruled through a representative a s s e m b l y and not as a conquest by royal prerogative. The taxpayer chal­ lenged the imposition of a tax by the Governor subsequent to this, but before the creation of the assembly. This case decided that once the Crown granted a representative legislature to a colony, it could no longer legislate for the colony through the prerogative and by Order in Council. (e) R ace , r e p re s s io n a n d g o v e rn a n c e

( j) Slavery and race-based rights

Colonial governance during the seventeenth, eighteenth and first half of the nineteenth centuries was “structured around brute force and command”.114 Kathleen Wilson notes that it “continuously established the side on which law and rights lay”,115 and racial difference was the dominant consideration. There were tiers of legal entitlements for those living in British colonies in the Caribbean. Only Englishmen were entitled to the full panoply of civil rights. The colonial state was preoccupied with identifying and classifying inhabit­ ants by racc.llf' Racial criteria determined who qualified as Englishmen and were used to limit the access of mixed-race persons and freed blacks to power and property.117The right to vote, sit in the legislature, give evidence in court a n d join the military were all partly determined by race, property owner­ ship, gender, religion and status as freed or slave. For example, in 1708 the Jamaican Assembly passed a motion that “no Jew, mulatto, negro, or Indian, shall have any vote at any election of members to serve in any assembly of this island”.118 Around the same period, the Barbadian Assembly declared that “no Person whatsoever shall be admitted as a Freeholder [and therefore able to vote for or sit in the assembly], give oral Evidence in any Case whatsoever, whose original Extraction shall be proved to have been from a Negro, except only on the Trial of Negroes, and other Slaves.” 119 113 Phillips v Eyre (1 8 7 0 ) L .R . 6 Q .B . Com m onw ealth (B u it e r w o r t h s , 1983), p. 12.

1 (E x c h ).

See Sir W illia m

D a le .

The M odern

114 A n t h o n y B o g u e s . " P olitics. N a t i o n an d P o s t C o lo n y : C a rib b e a n In flection s" (2 0 0 2 ) 6 (1 ) Sm all A x e 1. 13. 115 K a t h le e n W i l s o n . " T h e P e r fo r m a n c e o f F r e e d o m : M a r o o n s a n d the C o l o n i a l Order in E igh teen th C e n tu r y J a m a ic a an d the A tla n t ic S o u n d ” (2 0 0 9 ) 6 6 W m & M a r y Q 4 5 . 52. 116 A n n I .aura S to ler. C arnal K now ledge a n d Im perial Power: Race and the In tim ate in C olonial Rule ( U n iv e r s ity o f C a lif o r n ia Press, 20 0 2 ), p .2 0 6 . 11 K a th leen W il s o n . " R e t h in k i n g the C o lo n ia l State: F a m ily , G e n d e r , a n d G o v e r n m e n t a li t y in F ig h tc c n l h -C o n tu r y British F r o n tie r s ” (2 0 1 1 ) 116 A m e r ic a n H is to r ic a l R e v 1294, 1320; M e la n ie N e w t o n , The Children J A frica in th e Colonies: Free P eople o f C olor in B arbados in the A ge of Em ancipation ( L o u is ia n a S ta t e U n iv e r s i ty P ress, 20 0 8 ), p. 16. 1IR J o u r n a ls o f the A s s e m b l y o f J a m a ic a V o l u m e 1 , 4 3 9 q u o t e d in M il e s O g b o r n , “T h e P o w e r o f S peech: O rality, O a t h s and E v id e n c e in the British A tla n t ic W o r ld , 1650 18 00 “ (2 0 1 1 ) 36 T r a n s a c tio n s o f the In stitu te o f British G e o g r a p h e r s 109. 114. 119 Q u o t e d in O g b o r n , a b o v e .

1-019

18

1 OUNDA1IONS

The early British Caribbean colonies experienced a “combination of colonial autonomy and discretionary violence” that anchored the system of slavery.120 Plantation economies dependent on slave labour dramatically expanded Caribbean populations, making whites a minority.121 By 1815, eight years after the abolition of the slave trade and two decades before the aboli­ tion of slavery, the population of African slaves was 12 times that of whites in the Anglophone Caribbean.122 There was a legislative framework for slavery throughout the British Caribbean by the end of the seventeenth century as each colony developed its own code to regulate slavery. Positive laws “made slavery possible” in the British Caribbean.123 The assertion by white elites of the rights in the English Constitution to liberty and property shored up the system of slavery.124 The early colonists invoked the rule of law and English liberties to distinguish “their civil societies from the chaotic places in which they believed themselves to be situated” while employing their large measure of law-making powers and legal autonomy to regularise and regulate slavery within their borders.125 Slaves were regarded as “a special form of property” with features of both real and personal property.126 Slaves had a “bifurcated existence as both an object of property and a person”.127 They had “very heavily circumscribed and highly contingent legal subjectivities”.128 Elsa Goveia points out that to the extent slaves were considered human, the early slave codes recognised their “volition and a capacity of resistance” which demanded containment and repression.129 She noted that colonial legislatures in the British West Indies, fearful of slave revolts, spent much of their time enacting laws to police the slave population and maintain order.130 There were historic large-scale 120 Eliga Gould “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772" (2003) 60 Wm & Mary Q 471, 503. 121 In British Honduras, wood cutting was the primary economic activity, making this colony a noticeable exception to the plantation system. Slaves were imported for wood-cutting and soon outnumbered the white settlers in the colony. See O. Nigel Bolland. Colonialism and Resistance in Belize: Essays in Historical Sociology (UWI Press. 1988), pp.22 -25. 122 Spencer Mawby, Ordering Independence: Hie End o f Empire in the Anglophone Caribbean, 194 7 69 (Palgrave Macmillan, 2012), p. 6 . 123 Mindie Lazarus-Black, “Slaves, Masters, and Magistrates: Law and the Politics of Resistance in the British Caribbean 1736 1834” in Mindie La/arus-Black and Susan Hirsch (eds), Contested States: Law, Hegemony and Resistance (Routledge, 1994), pp.252, 267. 124 Elsa Goveia, “The West Indian Slave Laws of the 18th Century", in Elsa Goveia and Christopher John Bartlett, The West Indian Slave Laws o f the IRth Century (Caribbean Universities Press, 1970), pp.l, 20. 125 Eliga Gould “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772” (2003) 60 Wm & Mary Q 471,498. 503. 126 Elsa Goveia, “The West Indian Slave Laws of the 18th Century”, in Elsa Goveia and Christopher John Bartlett, The West Indian Slave Laws of the 18th Century (Caribbean Universities Press, 1970), pp.l, 21. 127 Saidiya Hartm an, Scenes of Subjection: Terror, Slavery and Self-Making in NineteenthCentury America (OUP, 1997), p.4. 128 Miles Ogborn. “The Power of Speech: Orality, Oaths and Evidence in the British Atlantic World, 1650 1800” (2011) 36 Transactions of the Institute of British Geographers 109, 115. 129 Elsa Goveia, “The West Indian Slave Laws of the 18th Century”, in Elsa Goveia anc Christopher John Bartlett, The West Indian Slave Laws of the 18th Century (Caribbear Universities Press, 1970), p p .l, 2$. See also Saidiya Hartman, Scenes o f Subjection: Terror Slavery and SelJ'-Making in Nineteenth-Century America (OUP, 1997), p.5. 130 Goveia, above, pp. 1, 22.

1 PK F-TW K N TIl'.rU CENTURY CONSTITUTIONAL DEVHLOPMEN 1'

19

revolts by slaves as well as ongoing resistance to the institution of slavery, including Barbados in 1816, the 1823 Demerara revolt and Christmas rebel­ lion in Jamaica in 1831-2. But it was the Haitian Revolution at the end of the eighteenth century, ending slavery in the French colony of Saint Dominique and creating a Haitian republic, that produced decades of dread and anxiety amongst the white elites about similar uprisings in the British Caribbean. The British Americas was “a region ‘beyond the line’”, where the British could ‘‘engage in forms of violence that were unacceptable” in Britain.131 Multiple legal regimes could be tolerated in the British Empire and they could include freedom for some Africans in England and the maintenance of slavery in the colonies.132 In 1772, Lord Mansfield ruled in the case of S o m e rse t v Stewart.133 Somerset was a slave who had been taken by his owner to England. He escaped, but was recaptured and put on board a ship heading for Jamaica where he was to be sold as a slave. He filed for habeas corpus in the English courts to prevent him being taken to the Caribbean. Somerset was released on the narrow point that he could not be forcibly taken to the Caribbean because there was no law in England that could form the basis of his enslavement there. Lord Mansfield declared that slavery was “of such a nature, that it is incapable of being introduced on any reasons, moral or political”; he added that “it is so odious, that nothing can be suffered to support it, but positive law”.134 Scholars differ on the role this case played in the abolition of slavery.135 The decision resolved a conflict between law in England and the colonies but it did not change the legal status of slavery.136 Still it called into question the legal basis for slavery having regard to natural law and the English Constitution.137 Beginning in the late eighteenth century, changes to the slave codes were introduced to ameliorate the conditions of slavery. The decade before the end of slavery, from 1823 to 1833, was the high-water mark for these initiatives. Denied an assembly, Trinidad became a site for shaping Crown colony gov­ ernment and imperial control of colonial government, and a “testing ground” for amelioration measures.138 In Crown colonies, changes were introduced by Order in Council. The Colonial Office tried, with limited success, to persuade 131 Eliga Gould. “Zones of Law. Zones of Violence: The Legal Geography of the British Atlantic, circa 1772" (2003) 60 Wm & Mary Q 471,474. 133 Daniel Hulscbosch. “Nothing but Liberty: ‘Somerset’s Case’ and the British Empire" (2006) 24 L & Hist Rev 647. 657. 133 Somerset v Stewart (1772) 98 E.R. 499: (1772) Lolft 1 (KB). 134 Somerset v Stewart (1772) Lofft 1 (KB) at 19. Sec Gene Adams, “Dido Elizabeth Belle. A Black Girl at Kenwood” (1984) 12 Camden History Review 14. on the “ mulatto” grandniece of Lord Mansfield who was raised in his household. 135 See e.g. George Van Cleve, "‘Somerset’s Case’ and Its Antecedents in Imperial Perspective" (2006) 24 L & Hist Rev 601; Daniel Hulsebosch, “Nothing but Liberty: ‘Somerset’s Case’ and the British Empire” (2006) 24 L & Hist Rev 647; Ruth Paley, “Imperial Politics and English Law: 'ihe Many Contexts o f ’Somerset’” (2006) 24 L & Hist Rev 659; George Van Cleve, “Mansfield’s Decision: Toward Human Freedom” (2006) 24 L & Hist Rev 665; Justin Buckley Dyer, “After the Revolution: Somerset and the Antislavery Tradition in Anglo-American Constitutional Development" (2009) 71 J Pol 1422. 136 Paley, above, 664. 137 Justin Buckley Dyer, “After the Revolution: Somerset and the Antislavery Tradition in Anglo-American Constitutional Development” (2009) 71 J Pol 1422. 138 James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (CUP, 2012), p.276.

1-020

FOUNDATIONS

20

colonies with elected assemblies to use these laws as models to make com­ parable changes.139 Over time, laws were introduced throughout the British Caribbean making severe maltreatment of slaves a crime, outlawing certain punishments like flogging naked female slaves and bolstering adjudication over slaves somewhat. There was some regulation on paper of hours of work, and slaves were given greater access to manumission and to owning property. Slaves were allowed to give evidence in court and a new regime was intro­ duced providing for “protectors” for slaves. The amelioration laws altered the legal entitlements of slaves who used the new legal regime to invoke the rule of law and pursue their legal entitlements.140 Slaves used these limited judicial procedures to protest against the conduct of masters—including excessive punishment, ill-treatment and insufficient food.141 Slave women brought a large number of the complaints.142 During the late eighteenth and nineteenth centuries, free people of colour waged campaigns for electoral reform and against discriminatory laws. In the Southern Caribbean, the late conquered territories, the population of freed people of colour was large and mobile.143 In 1797, two-thirds of Trinidad’s free population were people of colour; they were considered a threat to law and order and fomenters of dissent within the slave population.144 In Trinidad, which retained Spanish law after conquest, many free people of colour argued for the introduction of English law, assuming it would better guarantee their civil and political rights.145 Newspapers edited by freed men of colour like the Liberal in Barbados and the Antigua Weekly Register were important avenues for communicating their claims for racial equality and political reform on the basis of their citizenship in the British Empire.146They made some progress in securing civil and political rights during the early nineteenth century as measures were introduced to ameliorate slavery. As the right to vote was slowly extended on a limited franchise based on prop­ erty qualifications, a handful of well-educated and propertied men of colour began to gain access to colonial administration as stipendiary magistrates and in the civil service. A small group of well-off”men of colour also gained access to representational politics. Samuel Jackman Prescod became the first col­ oured man to sit in Barbados’ House of Assembly in 1843. Melanie Newton cautions that despite this progress, in Barbados “less than one percent of the population could vote” at that time and in the four decades after.147 She contends that 139

See Mary Reckord, “The Colonial Office and the Abolition of Slavery" (1971) XIV 4 Hist

J 723. 140 Nicole Aljoe, “‘Going to Law’: Legal Discourse and Testimony in Early West Indian Slave Narratives” (2011) 42 Early American Literature 351, 351. 141 Mindie Lazarus-Black, “Slaves, Masters, and Magistrates: Law and the Politics of Resistance in the British Caribbean 1736-1834*' in Mindie Lazarus-Black and Susan Hirsch (eds), Contested States: Law, Hegemony and Resistance (Routledge. 1994), pp.252, 266. 142 Lazarus-Black, above, p.266. 143 Kit Candlin, The Last Caribbean Frontier, 1795 -1815 (Palgrave Macmillan, 2012), pp.xxi,

100 101.

Candlin, above, p. 139. Candlin, above, p. 151. Melanie Newton, The Children o f Africa in the Colonies: Free People o f Color in Barbados in the Age o f Emancipation (Louisiana State University Press, 2008), pp. 124, 221. 147 Newton, above, pp.254,267. 144 145 146

1’ k l

1 W l N 1 II' 1 II I T . N T U R Y C ' O N . S H T W n O N A l . D L i V L I O H M I N I

21

••by a c c e p tin g a few elite m e n o f c o lo r in to th e political fold w ith o u t m a k in g f u n d a m e n ta l c h a n g e s , th e im p e ria l a n d c o lo n ia l regim es e n s u re d t h a t the political m o m e n t u m o f r a d ic a l re fo rm e rs w as a rre s te d while th e exclu sion o f the m a jo rity f r o m p u b lic life w a s reaffirm ed .” 148 N ew ton also o b se rv e s t h a t w hile sm all av e n u e s o p e n e d u p fo r elite m e n o f colour to e n te r p o litic al life, w o m e n o f c o lo u r w ere n o t ex p ec ted to be p o liti­ cal a c t o r s .149 In o rd e r to secu re law a n d o r d e r in th e h in te r la n d s w h e re th ey h a d little control, a n d t o p r o t e c t th e p r o p e r ty a n d in terests o f th e p la n te rs , co lo n ial au th orities gave v a r io u s fo rm s o f legal re c o g n itio n to p o c k e ts o f in d ig e n o u s peoples a n d M a r o o n s in th e C a r i b b e a n . 150 I n a 1773 T r e a ty in St. V in cen t, th e "black C a r ib s ” w ere g r a n te d p o litic al s o v ereig n ty o v e r s u b s ta n tia l la n d s in exchange fo r r e tu r n i n g r u n a w a y slaves, ag ree in g n o t to t r a d e w ith th e n e ig h ­ b ouring F re n c h isla n d s a n d a g re e in g to a b id e by the law s o f St. V in cen t an d B ritain .151 Treaties giving s o m e legal re c o g n itio n , rig h ts to la n d a n d p olitical a u to n o m y w ere n e g o tia te d w ith th e M a r o o n s in J a m a i c a in th e e ig h te e n th century to e n d M a r o o n in su rg e n c y a n d to restric t th e ir d estab ilisin g force o n p la n tatio n e c o n o m ic s b a s e d o n slave l a b o u r . 152 T h e A lc a ld e J u ris d ic tio n A ct 1858 in B ritish H o n d u r a s legalised th e p o s itio n o f th e h e a d m a n o r alcalde in M a y a villages, w h o w as a n u n p a i d official w ith th e p o w e r to exercise sum m ary civil a n d c r im in a l ju ris d ic tio n . T h e p r a c tic a l benefit o f this j u r i s ­ diction w as to secure law a n d o r d e r in a re a s o f th e c o lo n y o v e r w h ich the colonial a d m in is tr a t io n h a d n o c o n t r o l . 15’

i ii) The end o f slavery and the reconfiguration o j the repressive state

1he thorny relationship between the representative legislatures in the colo­ nics and the imperial government was sustained in the nineteenth century as local legislatures resisted imperial initiatives designed to ameliorate and end slavery.1'4 The Emancipation Bill was presented to the Imperial Parliament in May 1833. It was enacted three months later on August 28, 1833 and came into effect on August 1, 1834.b- Substantial concessions were made to N e w t o n , a b o v e , p .25 5. 14,1 N e w to n , a b o v e , p.272. ^ See O. Ni.uel H ollan d . C olonialism an d R esistance in Belize: E ssays in H istorical S o cio lo g y (U W I Press. 1988). p. 134. IM Lliga G o u l d . " Z o n e s o f L a w . Z o n e s o f V iolence: T h e L egal G e o g r a p h y o f the British Atlantic, circa 1 77 2’' (2 0 0 3 ) 60 W in & M a r y Q 4 7 1 , 495. See Barbara KopytofT . " C o lo n ia l T r e a ty as Sacred Charter o f the M a r o o n s " ( 1 9 7 9 ) 26 1 tlinohistory 45; K e n n e t h Bilby, " S w ea rin g by the Past. S w e a r in g to the f u t u r e : Sacred O a th s. Alliances, and Treaties a m o n g th e G u i a n e s e and J a m a ic a n M a r o o n s " (1 9 9 7 ) 4 4 F,tlinohistory 655. 1 ' O. N ig e l Holland, C olonialism am i R esistance in Belize: E ssays in H isto rica l S ociology (U W I Press, 1988). p. 134. h4 See M a r y Turner, " The British C a r ib b e a n . 1823 1838" in D o u g l a s H a y a n d P aul C rav en (eds). M asters, S ervan ts a n d M agistrates in Britain an d the Empire. 1562 l c) 5 5 (U n iv e r s ity o f North C aro lin a Press. 2 0 0 4 ), p p .3 0 3 , 305; R o b e r t L iv in g sto n Sh u y ler. " T h e C o n s titu tio n a l Claims o f the British W e st Indies" (1 9 2 5 ) P o l S ci Q 1, 13. 18. h A n Act for the A b o lit io n o f S la v ery t h r o u g h o u t the British C o lo n ie s ; for p r o m o t in g the Industry o f the m a n u m it t e d Slaves; a n d for c o m p e n s a t i n g the P e r so n s h ith erto en titled to the ■Services o f s u c h S la v e s , 3 & 4 W ill.4 (c.7 3 ), U K .

1 021

22

FOUNDATIONS

the slave-owners to end slavery. The Act, Mary Turner argues, “was essen­ tially an employers’ charter” that guaranteed compensation to slave owners, of 20 million pounds, and afforded them new mechanisms to regulate and discipline labour.156 The Act created an intermediate “system of incomplete and unevenly distributed freedom”—apprenticeship.157 The apprentices were unpaid workers who could buy the remainder of their time. Only children under six were to be freed immediately. The labour of slaves who worked in the fields was guaranteed longest. They were scheduled for full freedom last, in 1840. Apprenticeship marked the beginning of a new era of state formation that brought the apprentices into more “direct contact with the imperial state”.158 Newly-appointed stipendiary magistrates oversaw and administered the system of apprenticeship and were the linchpin of the new colonial state structure. They owed their office to and were paid by the imperial govern­ ment. The stipendiary magistrates adjudicated labour disputes and chaired the committees created to decide on early manumission. Together with an emerging system of enforcement of penal and labour laws through the police and constables, they ushered in a new body of state officials,159 and further reduced the judicial role that had been assumed by slave owners in punishing slaves.160 Diana Paton observes that “[t]he imperial commitment to the rule of law was central to apprenticeship” and included efforts to secure an impar­ tial application of the law.161 The stipendiary magistrates were intended to be protectors of the apprentices, independent of the planter class. They were too few in numbers and not sufficiently independent to be effective. Local legislatures pre-empted any increase in the powers of stipendiary magistrates and Governors by ending the system of apprenticeship, and slavery, twc years early in 1838. This turning point in Caribbean history with the “restoration of civil status” for enslaved people162 was filled with constitutional contradictions With the end of slavery came new franchise restrictions to keep the liberated population from accessing political power. These included property anc poll tax qualifications. The poll tax was a per head tax that had to be paic in order to be eligible to vote. In British Guiana in 1849, a literacy require­ ment was added. Eligible women could vote in British Guiana after 18L but the franchise for women was removed in 1849 and was only restored lr 156 Mary Turner, “The British Caribbean, 1823 -1838” in Douglas Hay and Paul Craven (eds) Musters, Servants and Magistrates in Britain and the Empire, 1562 1955 (University of Nortl Carolina Press, 2004), pp.303, 314. 157 Melanie Newton, The Children of Africa in the Colonies: Free People o f Color in Burbado, in the Age of Emancipation (Louisiana State University Press, 2008), pp. 143, 173. 158 Diana Paton, No Bond but the Law: Punishment, Race, and Gender in Jamaican Stat. Formation, 1780-1870 (Duke University Press, 2004), pp.8 , 54. 159 Paton, above, pp.7, 54, 59. 160 Melanie Newton, The Children of Africa in the Colonies: Free People of Color in Burbado in the Age of Emancipation (Louisiana State University Press, 2008), p. 143. 161 Diana Paton, No Bond but the Law: Punishment, Race, and Gender in Jamaican Stat Formation, 1780-1870 (Duke University Press, 2004), p.67. See also Roderick McDonald Between Slavery and Freedom: Special Magistrate John Anderson’s Journal o f St Vincent dttrin, the Apprenticeship (UWI Press, 2001). 162 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polit (Caribbean Law Publishing Co, 2002), p.2.

'•r:

i'.vi

11: i :i ( i N 1 1 i'A > ( ->.si i it 1 i o \ \ i i >i \ i I < >iv\i i \ i

10 ’S . b e

>lo* k d :t k ci/ei vi liiiuueial re p re s e n la liv c . m e n h ad to ow n ( p;ist -Sti aouo: ol land , id w hich it) w oic und ci c u ltiv a tio n , o r be en titled ‘ a s u b sta n tia l a n n u a l i n c o m e . 1" 1 W ith these restric tio n s, v o te r s ’ lists in the J ,-ibbcan c o lo n ie s w ere very sm all F o r e x a m p le , T ob ag o h a d p o p u la tio n (1I 15.410 m I SO 1 a n d th e re w ere o n ly 216 reg istered v o ters. ^ i oval c o e rc io n c o n t in u e d a l t e r I83.8lw’ a n d the " c o n t r a c t w a s th e vehicle ,C s e rv itu d e * .1'” I lie c o n tro l o f lic e l a b o u r e m e rg e d as a co re s ta le lim e lion in die B ritish C a r i b b e a n . 11"' A b o d y o f new laws g o v e r n in g la b o u r, crime, public o r d e r , v a g ra n c y a n d p o o r iclioT b e c a m e in d is p e n s a b le to seeurintL l a b o u r . N e w m a s te r a n d s e rv a n t le g islatio n m a d e la b o u r v io la tio n s crhnes. These in c lu d e d insufficient w o rk , refu sin g lo w o rk a n d a b s e n c e fro m work. The new l a b o u r law s lim ited l a b o u r e r s ’ fre e d o m o f m o v e m e n t, a n d freedom to c h o o s e a n e m p lo y e r a n d seek b e tte r w o r k in g c o n d itio n s . In British H o n d u r a s , n o w Belize, fo re s try w o r k e r s o p e r a t e d in a system o f s e r­ vitude to p ay o i l 'd e b t s to e m p lo y e r s a f te r slavery. It is re p o rte d t h a t at the end o f the n in e te e n th c e n tu r y , m en w h o failed to r e p o r t to w o rk for e m p lo y ei's to w h o m they w ere in d e b te d a m o u n l e d to 40 per cent o f all c rim in a l c o i n ictions in the co lo n y . 11 New v a g ra n c y , public o r d e r a n d p o o r relief legislation severely c o n tro lle d social p ro te s t a n d d is c o u ra g e d th e m o v e m e n t o f w o rk e rs to u r b a n area s. I iceiiees a n d ta x a tio n w ere used to h a rs h ly re g u la te n o n - a g r ic u ltu r a l w o r k . 171 I lie w hite elite c o n tro lle d n ot o n ly the legislature blit th e ju s tic e system as well. S tip e n d iary m a g is tra te s w ere rep la ced by local ju d g e s b e h o ld e n to th e planters. W ith jurisd ictio n o v er l a b o u r cases u n d e r th e new regim e, judges, Mmie o f w h o m h ad a direct interest in th e m a tte r s b efo re t h e m , 177 b eca m e kev in s tru m e n ts o f th e new state-led system oi co erc ed w o rk . 73 S ta te policies and laws a fte r 1S3N w ere also in fo rm e d by th e belief th a t th e f o rm e r slaves required tra in in g o n ho w to fu n c tio n a n d b e h a v e as freed subjects. W o m e n o f colour w ere e x p e c te d to lim it in d e p e n d e n t e c o n o m ic activities a n d learn the l"‘ M. S h a lt.ib m leo n . ( 'oii.siilntimial D evelopm ent in (iiiytina If)?. I /OAV ( G u y a n a Printers I id. 19 S). p.284. " ’ S h a h a b u d e c ii. a l i o w . p .291. ; " Jam es P atterson S m ith . "The I iherals R a c e, a n d P olitical R e fo r m in the British Wesi Indies. I SnO | S 74 ( 19 9 4 ) 79 J ol Ne.iii'u I listorv 131. 134. 1 ' Viitlnmy B o v i n s . " P oliiics. N a l i o n an d P o s tC o lo n y : C ar ib b ea n In lleciion s" (2 0 0 2 ) Z>( I ) Miial! A s e t !. Sauliy.i M a il m a n . Sevnev o f Subjection. I error. Shivery am i S ell-M a k in g in M neieeiilh C iiiitirv Imerii ii ( ( >1 'P. 1997) p. I 16. D ian a P a lm i. V,-; Bom l hill the lo w . Punisliiiiein. Rare, and (lender inJainairan S ta le I iniaiian i AY) i s /7 ( D u k e U n iv e r sity Press. 2(J04). p .54. B aton. ih o v e . S ee a ls o A n t h o n y D e V. Phillips. " E m a n c ip a t io n Betrayed'?: S ocia l C o n tr o l Terns!;'non in ih e British C a rib b ea n (w ith sp ecial reference to B a r b a d o s) 1X34 7 6 ” (1 9 9 5 ) Chi Kent i . I C v 1319: and D o u g la s Hay and Paul C ra v en " I n tr o d u c t io n ” in I lay and C raven (eds). Win/c/v. Sen-,inis and M agistrates in Britain m id llu- Fnipire. 156? 1655 ( U n iv e r s ity o f N o r th < am! a i “ les s. 20 01 ). pp 1 .4 . VLuk M o h e ij t. C r o w n C oUnty a s B a n a n a 2 R e p u b lic : T h e U n ite d I ruil C o m p a n y in 1900 19 20 ” (1 9 9 6 ) AS J o f Latin A m e r ic a n S tu d ie s 3.57. 35,S. ! M ela n ie New ton. I lie ( liihlrcn /. l/rn a in die ( 'ninnies: Tree Ben/de n/ C olor inBarbados m tin ley o / i main i/m lion (L o u is ia n a State U n iv ersity Press. 2 00 8 ). p .228. R.W . K o sta l. I Jin isn nu len re of I'owcr; V ictoriw i l-'.ntnire and the Rah ol P aw (O U P . 3.005). p..5. Br i t i s h H o n d u r a s

M elan ie N e w t o n . / In- Children ,>/ l/ric a in tin Colonies: Free People o / Cohn in Barbados m the l y r n j I mam ipalim i ( L o u is ia n a S ta te University Press 2 0 08 ). p .230.

1 02 ?

24

POTJN DA I IONS

“proper gender order” for men and women,174 adopt Christian marriage and work primarily within the home.175 By the end of the nineteenth century not just Afro-Caribbean people but indentured workers faced the severe disciplinary power of the colonial state through criminal and employment laws.176 Indentureship emerged as a new “institutionalized system of ‘voluntary servitude’”177 after slavery and the retreat of freed blacks from the plantations. A number of different immigrant groups became indentured workers, including the Chinese, but this form of work was dominated by Indian immigrants brought to British Guiana, Trinidad and Jamaica. It is estimated that more than 400,000 indentured Indians worked on plantations in the Caribbean between 1838 and 1917. In Trinidad by the 1870s, Indians comprised 90 per cent of those working on sugar plantations.178 The contractual terms of employment and post­ emancipation laws harshly limited the freedom of action of Indians.179 New laws were introduced imposing very strict penalties for neglecting duties, disobeying lawful commands, absence from work and damaging property. Immigration agents, magistrates and justices of the peace were all part of the state infrastructure for law enforcement and control.180 (f) Post-slavery social upheaval and the ascendancy of Crown colony government ( i) The M orant Bay uprising

1-023

The repressive post-slavery colonial regime, worsening economy for sugar production, poor working and social conditions, and disenfranchisement and isolation of the majority populations produced ongoing frustration and social unrest in the British Caribbean in the second half of the nineteenth century. The failure of the colonial government to respond to the demands of Afro-Jamaicans for economic, social and political reforms led to the Morant Bay uprising in Jamaica in 1865, one of a number of disturbances in the British Caribbean during this period. The absence of judicial independence 174 Catherine Hall, Civilizing Subjects: Metropole and Colony in the English Imagination 1830 1867 ("University of Chicago Press, 2002), p. 122. 175 Diana Paton, No Bond But the Law: Punishment, Race, and Gender in Jamaican State Formation, 1780 1870 (Duke University Press, 2004), p.55; Melanie Newton, The Children of Africa in the Colonies: Free People of Color in Barbados in the Age of Emancipation (Louisiana State University Press, 2008), pp.8-9. 176 M. Shahabudeen, Constitutional Development in Guyana 1621 1978 (Guyana Printers Ltd, 1978), p.279. 177 Prabhu P. M ohapatra, “Assam and the West Indies, 1860-1920: Immobolizing Plantation Labor”, in Douglas Hay and Paul Craven (eds), Masters, Servants and Magistrates in Britain and the Empire, 1562 1955 (University of N orth Carolina Press, 2004) pp.455,458,460. 178 See also Kusha Haraksingh, “Control and Resistance Among Overseas Indian Workers: A Study of Labour on the Sugar Plantations of Trinidad 1875 1917”, in Hilary Becklcs and Verene Shepherd (eds), Caribbean Freedom: Economy and Society from Emancipation to the Present (IRP, 1996) pp.207,207. 179 Douglas Hay and Paul Craven (eds), Masters, Servants and Magistrates in Britain and the Empire, 1562-1955 (University of N orth Carolina Press, 2004), p.4. 180 Juanita de Barros, “Urban British Guiana, 1838-1924: W harf Rats, Centipedes and Pork Knockers” in Douglas Hay and Paul Craven (eds), Masters, Servants and Magistrates in Britain and the Empire, 1562-1955 (University o f North Carolina Press, 2004), pp.323, 325 326.

3. PRW.-TWRN riHTII CEN IURY CONSTITUTIONAL DEVELOPMENT

25

a n d c o n tro l o f th e ju d ic ia r y by th e p la n te r s w ere s tr o n g c o n t r i b u to r y fa c ­ to r s .181 In d e e d th e p r o te s ts b e g a n a t th e M o r a n t B ay c o u r th o u s e . T h o m a s H o lt e x p la in s t h a t “ m o r e o fte n t h a n n o t, p la n te r s w ere th e c o m p la in a n ts a n d jud ges, a n d b la c k s w e re th e d e f e n d a n ts a n d lo s e rs ” .182 T h e v io le n t c r u s h in g o f th e M o r a n t B ay d is tu r b a n c e b y th e c o lo n ia l g o v ­ e rn m e n t p r o d u c e d a c o n s ti tu ti o n a l crisis in th e c o lo n ie s a n d th e m e tro p o le . M a r tia l law w as d e c la r e d a n d a “ p r o t r a c t e d a n d c a lc u la te d reig n o f t e r r o r ” was u n le a sh e d o n th e b la c k p e a s a n t r y . 183 I t is r e p o r t e d t h a t o v e r 400 b la ck s were s h o t o r e x e c u te d a n d o v e r 600 flo g g e d .184 M a r t i a l law w a s m a in ta i n e d for th ir ty d a y s ev en th o u g h th e b la c k resistan c e w a s s u p p re s se d in a w e e k .185 P aul Bogle, th e B a p tis t p o p u lis t le a d e r f o r la n d a n d p o litic a l re f o r m , a n d G eorge W illia m G o r d o n , th e c o lo u re d la n d o w n e r , le g islato r a n d critic o f the G o v e r n o r , w ere trie d a n d c o n v ic te d b e fo re m ilita ry c o u r ts . T h o u g h b o t h were ex ec u ted , it w a s th e h a n g in g o f G o r d o n , a m ix e d ra c e m a n a n d p r o m i ­ nent o p p o s iti o n leg islator, f o r tr e a s o n a n d sed itio n , t h a t s p a w n e d u p r o a r in E n g la n d a b o u t th e e x tre m e u se o f fo rce in J a m a ic a . T h e G o v e r n o r a n d h is a d m i n i s t r a t o r s ju s tifie d th e ir a c tio n s as law fu l u n d e r m a rt ia l law . R a n d e K o s t a l d escrib e s th e officials in J a m a i c a as “ p r e ­ occupied w ith le g a lity ” . 186 M a r t i a l law , w h ic h im p o s e d v ery m a r g i n a l lim its on p o w e r, serv ed th e en d s o f legality; it m i g h t b e “ a d e b a s e d s o r t o f law , it m ight be a n t ith e t ic a l to E n g lish n o r m s , b u t a t le a st it w a s a f o r m o f law.”m Liberals in E n g l a n d e x p re s s e d c o n c e r n t h a t su c h e x tre m e t e r r o r w o u ld n o t be a c c e p ta b le in E n g l a n d w h ic h p r id e d itse lf o n b e in g civilised, a n d civilised by la w .188 T h e J a m a i c a C o m m itt e e —a c o a litio n o f C h r is ti a n a c tiv is t a n d secular lib erals -was f o r m e d a n d b r o u g h t p r iv a t e c r im in a l p r o s e c u ti o n s a n d later p r iv a te civil cla im s a g a i n s t th e J a m a i c a n G o v e r n o r . T h e activ ities o f the C o m m itt e e g a v e rise to a n e x te n d e d d e b a t e a b o u t th e ru le o f law in E n g la n d .189 T h e y a ls o g e n e r a te d v ery s tr o n g c o n s e r v a tiv e o p in i o n s a b o u t im perial rule, ra c ia l differences b e tw e e n w h ite s a n d b la c k s a n d th e in e v ita ­ bility o f fo rce to se c u re law a n d o r d e r . 190 I n t h a t vein, th e P a ll M a ll G a z e t te suggested t h a t if “ a sm all n u m b e r o f w h ite s is e s ta b lis h e d in th e m id d le o f n u m e r o u s alien races, . . . it is b e tte r t h a t this s h o u ld be d o n e u n d e r so m e legal s e m b la n c e a t least o f legal a u t h o r i ty , t h a n in a sta te o f m e re legal c h a o s .” 191

181 See Noelle Chutkan, “The Administration of Justice in Jamaica as a Contributing Factor in the Morant Bay Rebellion of 1865” (1975) 11 Savacou 78. I8: Thomas Holt, The Problem of Freedom: Race. Labour and Politics in Jamaica and Britain 1332 1933 (Johns Hopkins University Press, 1992), p.228. ,IU R.W. Kostal, A Jurisprudence of Power; Victorian Empire and the Rule of Law (OUP. 2005), p. 13. ,w Kostal. above. 1,15 KosUl. above. Iw’ Kostal. above, p.7. I8' Kostal, above, p.471. 188 Kostal, above, pp. 2 0 , 461. 189 Kostal. above, p. 16. 190 Catherine Hall, Civilizing Subjects: Metropole and Colony in the English Imagination 1330 1367 (University of Chicago Press, 2002), p.424. Quoted in R.W. Kostal, A Jurisprudence of Power; Victorian Empire and the Rule of Law (OUP, 2005), p.471.

26

FOUNDATIONS

( ii) The ascendancy o f Crown colony government

1 024

In the wake of the social upheavals after emancipation and the fear of th white minority of the Afro-Caribbean masses, the old representative systen that had been the hallmark of colonial governance from the late seventeentl century in the British West Indies fell apart. Jamaica and other colonies vol untarily gave up their representative assemblies and accepted Crown colon government through Orders in Council. The Jamaica Act 1866192 enactei by the British Parliament confirmed this. Between 1854 and 1878 Crowi colony government replaced the old representative system where it existei in the Caribbean, except in Barbados, the Bahamas and Bermuda. British Guiana was the last to receive Crown colony government in 1928. Unt then it had maintained a system of government derived from the predecesso Dutch colonial regime. In British Honduras, a Crown colony constitutio was introduced in 1871. There the threat to planter interests was less the pus by Afro-Caribbeans for social, economic and political developments, an more the threat of Maya insurrections and the heavy cost it put on the colon to take military actions against the Maya.193 James Patterson Smith explains that the contradiction between the exter sion of the authoritarian Crown colony government in the Caribbean, an metropolitan political values of liberty, representative institutions an limited government at home “can only be understood in racial terms”.194Th white settlement colonies, such as Canada, New Zealand and Australia, wei regarded as more politically advanced than the plantation colonies in tli Caribbean.195 Crown colony government became the norm in the “tropic? and non-European-settled dependencies” where there was the greatest imp< rial distrust of the majority populations and white elites.196 The metropo' was suspicious of white colonial elites, whom the Secretary of State for tl Colonies described as “a local oligarchy of whites and half-breeds—alwaj incapable and frequently corrupt”.197 At the same time, the imperial goven ment was unwilling to contemplate governance by blacks who were consu ered to be “totally unfit for representative institutions”.198 Britain’s respon: to the crises in the Caribbean-—retrenching representative government rath than broadening it to the masses - -was criticised by many Afro-Caribbeans; the time through the press since these constitutional changes further increase their political powerlessness.199 Under Crown colony government, the Crown assumed direct and fi Jamaica Act 1866 29 & 30 V (c.12), UK. O. Nigel Bolland, Colonialism and Resistance in Belize: Essays in Historical Sociolo, (UWI Press, 1988). p. 152. 194 James Patterson Smith, “The Liberals, Race, and Political Reform in the British W< Indies, 1866 1874" (1994) 79 J of Negro History 131, 131. 195 D.B, Swinfen, The Imperial Control of Colonial Legislation IS 13 1365: A Study of Brin Policy towards Colonial Legislative Powers (Clarendon Press, 1970), p.99. 196 H.A. Will, “Problems of Constitutional Reform in Jamaica, Mauritius and Trinidi 1880-1895*’ (1966) 81 Eng Hist Rev 693, 693. 197 Joseph Chamberlain to Dilke, April 15. 1896 Chamberlain Papers, JC5/245/552. cited H.A. Will, above, p.715. 198 Chamberlain, above. 199 Edward Cox. “William Galwey Donovan and the Struggle for Political Change Grenada, 1883 1920” (2007) 22 Small Axe 17. 192 193

1. 1’RI —['WI N I n n li ( 1 M 1)RY ('C)NSTlTU riONAI DF.VLL.t )PMFNT

27

respo nsib ility fo r th e a d m in is tr a t io n o f th e co lo n ies t h r o u g h a G o v e r n o r w h o was s u b j e c t to close m e tr o p o li ta n s u p e r v is io n .200 T h e G o v e r n o r c o n tro lle d the legislature w h ich w as e ith e r w h o lly o r largely n o m i n a t e d . 201 T h e m a jo r ity o f the m e m b e rs o f th e leg islature w ere officials b e h o ld e n to th e G o v e r n o r . 1 he unofficial n o m i n a te d m e m b e rs w ere a p p o i n te d b y th e G o v e r n o r . 202 A few c o u n trie s h a d elected m e m b e rs , o n th e b asis o f a v ery restric ted fran chise. An Hxecutive C o u n c il s u p p o r te d th e G o v e r n o r in co lo n ia l g o v e r n a n c e a n d it was in d e p e n d e n t o f th e legislative c o u n c il a n d h a d n o resp o n sib ility to it.20’ Though C r o w n c o lo n y g o v e r n m e n t “ p la c e d severe s tra in s u p o n c o n s ti tu ti o n ­ alism ” beca u se o f its a u t h o r i t a r i a n s tr u c tu re , it w as seen— m u c h like a n o t h e r expression o f im p e ria l c o n tro l, a p p r e n t i c e s h i p - - a s a firm ex p ressio n o f the rule o f law o r a la w - b o u n d s o ciety .204 C ro w n c o lo n y g o v e r n m e n t differed t h r o u g h o u t th e C a r i b b e a n a n d evolved o v e r tim e to in c lu d e a n d give m o r e p o w e r to electe d m e m b e rs o f th e legislatures. Its p r o g r e s s io n d id n o t reflect “ th e s te a d y a p p l ic a t io n o f c a r e ­ fully t h o u g h t - o u t p rin c ip le s ” .205 I t d e v e lo p e d in re s p o n s e to th e e n v i r o n m e n t in the co lo n ies, th e views o f th e local officials a n d w h a t w a s e x p e d ie n t.200 A fter th e 1921 visit o f P a r li a m e n t a r y U n d e r - S e c r e ta r y f o r th e C o lo n ie s to the C a r i b b e a n , c o n s ti tu ti o n a l r e f o r m s led to a n in c re a se in elected m em bers a n d in th e ir ro le in th e le g islatu re s t h r o u g h o u t th e C a r i b b e a n . 207 By 1936, in A n tig u a , St. K itts - N e v is , M o n t s e r r a t a n d B ritish H o n d u r a s elected m e m b e r s w ere in t r o d u c e d . A s elected m e m b e r s in c re a s e d a n d official m ajo rities w ere r e m o v e d in th e tw e n tie th c e n tu ry , G o v e r n o r s g a in e d reserv e legislative p o w e r s to e n a c t law s in th e in te re s t o f p u b lic o r d e r a n d g o o d go v ern m e n t, d e s p ite o p p o s iti o n f r o m th e m a jo r ity o f th e m e m b e r s o f th e legislature.208 W ith th e g r a d u a l r e tr e a t in th e tw e n tie th c e n tu r y fr o m to t a l pow er c o n c e n tr a te d in th e G o v e r n o r a n d as elected m e m b e r s slow ly g ain ed c o n tro l o f th e le g islatu re , th e fra n c h is e r e m a in e d very lim ited u n til th e m i d ­ tw entieth c e n tu ry .

H.A. Will, "Problems of Constitutional Reform in Jamaica, Mauritius and Trinidad. 18X1) 1895" (196b) 81 Png Mist Rev 693, 693. See Gordon K. Lewis, The Growth of the Modern II 'iw/ Indies (Monthly Review Press, 1968), p. 106. -‘I| Lewis, above, pp.99, 1 0 0 . Jessie Harris Proctor Jr, “ British West Indian Society and Government in Transition 1920 60" in David Lovventhal and Lambras Comitas (eds). The Aftermath o f Sovereignty (Anchor Books. 1973). p.31. 1,11 Gordon K. Lewis. The Growth of the Modern West Indies (Monthly Review Press, 1968). p.98. ?"4 Lewis, above, pp.97, 115. li.A. Will, “Problems of Constitutional Reform in Jamaica, Mauritius and Trinidad, 1880 1895" (1966) 81 Png Hist Rev 693. 716. 2,,h Will, above, pp.693. 715. j" Will, above, p.99. "I> Jessie Harris Proctor Jr. “ British West Indian Society and Government in Transition 1920 60" in David Lowenthal and Lambras Comitas (eds), The Aftermath of Sovereignty (Anchor Books. 1973). pp.31, 45.

FOUNDATIONS

28

4. Decolonisation and Constitutional Change in the Twentieth Century

(a) Overview 1 025

By the middle of the twentieth century the UK had accepted and adopted a policy of leading its dependencies towards responsible self-government, though without a clearly defined path. The UK used its sovereign legislative powers to introduce incremental constitutional reforms in the colonies that increased local control of government.209 These reforms were steered by con­ stitutional committees and commissions and later constitutional conferences. By the mid twentieth century, constitutional conferences held in London with representation by local politicians became the norm for finalising Caribbean constitutions. The move towards self-government and the growth of Anglophone Caribbean nation-states was affected by the establishment of the United Nations which recognised the principle of self-determination of peoples and criticised colonial rule.210 In the 1960 Declaration on the Granting of Independence to Colonial Counties and Peoples, the UN General Assembly noted the right of colonies to freely determine their political status and to freely pursue their economic, social and cultural development.211 Crown colony government, the dominant form of governance in the British West Indies at the turn of the twentieth century, set the stage for the national­ ist political struggles for self-rule. Nationalist agitation and a gradual process of decolonisation in the British West Indies during the twentieth century led to independence in 12 countries at the close of the century, with 6 others becoming overseas territories. Like the evolution of Crown colony govern­ ment, the process of decolonisation in the British West Indies was not a care­ fully planned policy and it was not uniform or linear.212 There was no clear timetable for decolonisation. The negotiations between Caribbean political leaders and British authorities were often framed by suspicion and distrust on both sides and strong differences of opinion on the course to independence. The British authorities viewed the Caribbean as immature and underdevel­ oped with a need for “an extended period of political apprenticeship”,213 and often adopted a condescending and patronising attitude towards the colonial leaders.214 Nationalists, on the other hand, pushed for full political freedom, which they argued was a means of addressing the development challenges facing the region.215 Decolonisation was gradual and unfolded organically ir response to nationalist pressures, the differing local contexts in the colonies— their size, political development, economic viability and need for defence frorr 209 Peter C. Oliver, The Constitution o f Independence: The Development of Constitutiona Theory in Australia, Canada, and New Zealand (OUP, 2005), p.3. 210 United Nations Charter, art. 1(2). 211 35th Session A/35/23/Rev 1 Resolution 1514 XV, December 14, 1960 (United Nations). 212 Rafael Cox Alomar, Revisiting the Transatlantic Triangle: The Constitutional Decolonizatioi of the Eastern Caribbean (Ian Randle Publishers, 2009), p.208. 213 Spencer Mawby, Ordering Independence: The End o f Empire in the Anglophone Caribbean 1947 69 (Palgrave Macmillan, 2012), p.81. 214 Rafael Cox Alomar, Revisiting the Transatlantic Triangle: The Constitutional Decolonizatioi of the Eastern Caribbean (Ian Randle Publishers, 2009), p.69. 2,5 Spencer Mawby, Ordering Independence: The End o f Empire in the Anglophone Caribbean 1947-69 (Palgrave Macmillan, 2012), p.81.

, |)| COLONISATION AN DCONSllllJTIONAI ( 'HANOI' IN l'HH l'WKN'l IFTII CFN II)R Y

29

o thers im p erial s e n tim e n ts a b o u t th e re a d in e ss o f W e s t In d ia n s fo r self-rule an d the in te r n a tio n a l po litical e n v i r o n m e n t especially C o ld W a r politics. F o r very different r e a s o n s th e p ro cess w as reversed in so m e places, like British G u ia n a a n d A n g u illa, a n d h a lte d in o th e rs, like th e overseas territories.

(b) The road to self-government I j) The unrest of the 1930s and the agitation for constitutional reform C ro w n c o lo n y g o v e r n m e n t w as a u t h o r i t a r i a n a n d d y s fu n c tio n a l. T h e G o v e r n o r - d o m in a te d C r o w n c o lo n y system intensified te n sio n s b e tw e e n the executive a n d th e elected m e m b e r s o f th e legislature a n d u n d e r m i n e d p r o ­ ductive d e c isio n -m a k in g . T h e elected leg islators lacked real p o w e r a n d th u s o p e ra te d as “ o p p o s itio n fo r o p p o s i t i o n ’s s a k e ” , su sp iciou s a n d ho stile to all action s o f th e e x ec u tiv e .216 Less th a n 10 p e r cen t o f th e p o p u la tio n in th e British W e s t Indies h a d th e rig h t to v o te b e fo re th e S e c o n d W o r ld W a r . 217 The n a r r o w fra n c h ise r e q u ire m e n ts in c lu d e d re s tric tio n s b a s e d o n inco m e, ow nersh ip o f p ro p e r ty , sex a n d e d u c a tio n . W h e r e w o m e n w ere eligible to vote, th e v o tin g ag e w a s usually h ig h e r.218 P o o r e c o n o m ic a n d social c o n d itio n s in th e colonies led to w id e sp re a d social and la b o u r d is tu r b a n c e s in the 1930s acro ss th e C a r ib b e a n . T h e u n re s t w as a direct challenge to th e co lo n ial o r d e r a n d C r o w n c o lo n y g o v e rn m e n t, a n d fro m it em erged new political p arties, t r a d e u n io n s a n d a m o r e definite n a tio n a lis t politics.219 l'he n a tio n a lis t p o litic ian s a n d la b o u r leaders d e m a n d e d social a n d econom ic re fo rm s a n d im p r o v e m e n ts in w ages a n d w o rk in g c o n d itio n s .220 T h e y also ag itate d fo r c o n s titu tio n a l reform s, a d is m a n tlin g o f th e C r o w n co lo n y g o v ern m e n t a n d a m o v e to w a r d s self-g ov ern m en t. T o realise this, n a t i o n a l ­ ists w an ted u n iv e rsa l a d u l t suffrage, elected legislatures, E xecutive C o u n cils responsible to th e legislature a n d r e d u c tio n s in th e p o w e rs o f G o v e r n o r s .221

Gordon K. Lewis. The Growth of the Modern West Indies (Monthly Review Press, 1968). pp.101, 102.

■r To illustrate, in 1938 just 3.3 per cent of the population in Barbados could vote, only 2.48 per cent in Dominica, 2.18 per cent in St. Lucia 2.18, and 3.06 per cent in Antigua. Rafael Cox Alomar. Revisiting the Transatlantic Triangle: The Constitutional Decolonization o f the Eastern Caribbean (lan Randle Publishers, 2009). p. 14. ,|s In Jamaica immediately before the introduction of universal adult suffrage in 1944. only men of 21 and women of 25 could vole and only if they were domiciled in a dwelling on which they paid a 10-shilling tax annually, or operated a business, or had a job, or were in the receipt of a private income equal to the minimum house tax and were literate. To qualify to be a member of the Legislative Council, one had to own property yielding a yearly income of 150 pounds or other rrsources from which you earned 200 pounds per year (Alex, Zeidenfelt, "Political and Constitutional Developments in Jamaica” (1952) 14 J Pol 512, 524). ;i'’ Union activities were to varying degrees illegal across the Caribbean until the late 1930s. Richard Hart, " The Labour Rebellions of the 1930s” in Hilary Heckles and Verene Shepherd, Caribbean Freedom: Economy and Society from Emancipation to the Present (IRP. 1996), pp.370, 373 75; Spencer Mawby, Ordering Independence: The End of Empire in the Anglophone Caribbean, 1947 69 (Palgrave Macmillan. 2012), p.31. Industrial relations legislation legalised union activity in the aftermath of the Moyne Commission Report (Mawby, above, p.55). Jessie Harris Proctor Jr. "British West Indian Society and Government in Transition 1920 60” in David Lowcnthal and Lambras Comitas (eds). The Aftermath of Sovereignty (Anchor Books. 1973). pp.71,47. Proctor, above, p.48.

1-026

30

1 01 IN DA HONS

In response to the unrest in the 1930s, the imperial government appointed a West India Royal Commission headed by Lord Moyne to evaluate the situa­ tion and make recommendations. In its final report in 1945, the Commission conceded the need for constitutional reform which it believed would better secure the enactment of social legislation and social reforms needed in the Caribbean.222 The Commission recommended universal adult suffrage as the ultimate, not immediate, goal.223 It also suggested that there be a substantial reduction in the margin between qualifications to vote and to be a member of the Legislative Council.224 Its proposals in response to the calls for selfgovernment were modest. The Commission recommended a reduction in the number of officials in the legislature and greater representation of elected members on the Executive Councils. While this would give these elected members “insight into administrative business”, it would not give them real power in policy making.225 ( ii) Adult suffrage

1 027

Adult suffrage was first introduced in the British Caribbean in 1944 in Jamaica.226 The votens list in Jamaica increased 1000 per cent with the intro­ duction of adult suffrage.227 That year women gained the right to vote in Barbados and, a year later, property and income qualifications were reduced in Barbados and British Guiana. Adult suffrage came to Trinidad and Tobago in 1946. By 1954 most other Caribbean territories had achieved full suffrage. In the Bahamas, adult suffrage came later, in 1962.228 Adult suf­ frage was accompanied by gradual constitutional reforms that further weak­ ened Crown colony government. The expanded suffrage significantly altered the political environment. It strengthened the emerging party system and created a new power base for nationalist politicians in their negotiations with the imperial government.229 As they gained greater control of legislatures, nationalists deepened their fight for full control of the executive.230 ( Hi) Reformed legislatures

1-028

The journey to self-government was achieved through a series of consti­ tutional reforms to the structure of the legislature and executive. One key aspect of the redesign of the colonial legislatures was the accelerated increase in the numbers and power of elected legislators in mostly mixed unicameral legislatures during the mid-twentieth century. Officials and nominees in the 222 Great Britain Colonial Office, Report o f West India Royal Commission (HMSO, 1945), Cmd.6607, p.373 (Moyne Commission Report). 223 Moyne Commission Report, above, p.380. 224 Moyne Commission Report, above, p.382. 225 Gordon K. Lewis, The Growth of the Modern West Indies (Monthly Review Press, 1968), pp.98 99. 226 Robert Buddan, “Universal Adult Suffrage in Jamaica and the Caribbean since 1944’' (2004) Social and Economic Studies 135, 139. 227 Buddan, above. 228 Buddan, above, p p .135, 136. 229 Buddan, above, pp. 135, 139. 23(1 Spencer Mawby, Ordering Independence: The End of Empire in the Anglophone Caribbean, 1947 69 (Palgrave Macmillan, 2012), p.43.

I DECOLONISATION AND CONSTITUTIONAL CHANGE IN Tflb TWhNTIHTI (TN TU R Y

31

w ere r e p la c e d w ith elected m e m b e r s , u ltim a te ly b rin g in g th e la tte r to a m a jo rity in th e legislature. S o m e G o v e r n o r s exercised th e ir p o w e r to m a k e n o m i n a ti o n s to th e leg islature to a p p o i n t p e rs o n s w h o s u p p o r te d th e party w ith th e m a jo r ity o f elected m e m b e rs . T h is secu red overall c o n tro l 0 f th e legislatu re b y th e p a r ty w ith th e m a jo r ity o f elected m e m b e r s a n d stren g th en ed th e p o s itio n o f e m e rg in g p a rtie s a n d p a r ty system o f g o v e r n ­ m ent.231 A n o t h e r k ey d e v e lo p m e n t m a r k i n g th e t r a n s itio n to se lf-g o v e rn m e n t in som e colo nies w a s th e in t r o d u c ti o n o f b ic a m e ra l legislatures w ith fully elected low er H o u se s. T o use T r i n id a d a n d T o b a g o to illu strate, th ese p rocesses t o o k p la ce o v er a 40-year p e r io d in t h a t te rr ito r y t h r o u g h seven stages o f re fo rm s. In 1925 elected m e m b e rs w ere in tr o d u c e d to th e L egislativ e C o u n c il fo r th e first tim e. By 1941 42, th e n u m b e r o f ex officio m e m b e r s o n th e C o u n c il w as r e d u c e d an d the elected o n es in creased . P a r ity w as ach iev ed in 1946 b e tw e e n n o m i ­ nated a n d elected m e m b e rs , th e s am e y e a r o f u n iv e rsa l a d u l t suffrage. By 1950 th e L egislative C o u n c il h a d a s tro n g elected m a jo rity a n d t h a t p r o p o r ­ tion w as in c re ased f u r th e r in 1956. I n a d d itio n , th e G o v e r n o r w a s a u th o r is e d to m a k e n o m i n a ti o n s fo r th e u p p e r c h a m b e r to g u a r a n te e c o n t r o l o f t h a t c h a m b e r for th e p a r ty w h ich w o n th e m o s t se a ts .232 In 1961, j u s t b e fo re in d e ­ pendence in T r i n id a d a n d T o b a g o , a b ic a m e ra l legislature w as estab lish ed with a w holly elected H o u s e o f R e p r e s e n ta tiv e s a n d a S e n a te .233 N a tio n a lis t leader, Eric W illiam s, w h o b e c a m e C h ie f M in is te r in 1957, w as a n a r d e n t ad v ocate o f b ic a m e r a lis m .234 By 1964, T r i n i d a d a n d T o b a g o h a d a b o lis h e d the E xecutive C o m m itt e e a n d in t r o d u c e d a C a b in e t.

le g i s l a t u r e

(iv) Introduction o f ministerial government T he refo rm s to legislatu res w ere a c c o m p a n i e d by th e in t r o d u c ti o n o f a system o f respon sible g o v e r n m e n t—th a t is, a system o f m in iste ria l g o v e r n m e n t in which m inisters u n d e r t o o k th e respo nsibilities o f th e ex ecutive a n d in w h ich they w ere re s p o n s ib le to a legislature m a d e u p e n tirely o r p r e d o m i n a n tl y o f elected m e m b e r s .235 I t w as a s s u m e d in re s p o n s ib le g o v e r n m e n t t h a t if the m inisters n o lo n g e r h a d the co n fid e n ce o f th e legislature, th ey w o u ld be obliged to resig n .236 A f o r m o f resp o n sib le g o v e r n m e n t h a d existed in so m e fashion in B ritain since th e R e v o lu tio n o f 1688. W i th th ese ch an g e s, ex ec u ­ tive pow er shifted g r a d u a lly fr o m th e G o v e r n o r a n d his E x ecu tiv e C o u n c il to m inisters w h o w e re elected legislators. O v er th e c o u rs e o f the 1950s, th e 1,1 Jessie Harris Proctor Jr, ’'British West Indian Society and Government in Transition 1920 61)“ in David Lowenthal and Lambras Comitas (eds). The Aftermath of Sovereignty (Anchor Books. 1973). pp.31, 55. --p Proctor, above, p.55. See also H.O.B. Wooding. “The Constitutional History ofTrinidad and Tobago" (I960) 6 Caribbean Quarterly 143. 11 See Pnnsley Samaroo, “From Unicameralism to Bicameralism: Trinbago’s Constitutional Advances” (1831 1962), in Parliament ofTrinidad and Tobago, Evolution of a Nation: I'riniclad and Tobago at Fifty (Hansib Publications, 2012), p.65; William Dale, "The Making and Remaking of the Commonwealth Constitutions” (1993) 42 ICLQ 67, 6 8 . u Hamid Ghany, “ The Relevance of a Senate in a Modern Democracy" in Parliament of Trinidad and 1 obago, Evolution o f a Nation: Trinidad and Tobago at Fifty (Hansib Publications, 2012 ). pp.78. 89 9 5 . Kenneth Roberts Wray, Commonwealth and Colonial Law (Stevens & Sons, 1966). p.64. ,h Roberts Wray, above, pp.64 65.

1 029

32

FOUNDATIONS

ministerial system was introduced throughout the British West Indies. In due course, the elected members of the Executive Council were appointed on the advice of the leader of the majority party. In Trinidad and Tobago, a leader in these developments, the Executive Council was converted to an advisory body made up of increasing numbers of elected members in 1950. It made policy and its members had admin­ istrative control over specific departments. This development launched the ministerial system and gave majority parties greater influence over government policy. In the 1950s in the Leeward and Windward Islands, elected majorities in the legislature were introduced and increased. In 1956 the ministerial system came into effect, a very significant landmark towards full self-government.237 In 1959 the nominated members of the legislature were appointed in consultation with the leader of the majority party.238 Self-government was realised with the appointment of a Cabinet replac­ ing the Executive Council and was presided over by a Premier, who was the person who commanded the support of the majority of the elected members. In Jamaica, where the constitutional reforms leading towards self-government first started in 1944, the Executive Council had a majority of elected legisla­ tors appointed and removed on the advice of the leader of the majority party by 1953. By 1957 the Chief Minister presided over the Council with 10 members from the House of Representatives. Only two were appointed from the Legislative Council by the Governor and the Council had no officials. In 1959 the Executive Council became a Cabinet and the Chief Minister the Premier. In these constitutional developments the Governor’s functions were greatly reduced and became increasingly ceremonial. Soon the Governor lost the power to certify laws which were rejected by the legislature and he could only reserve laws likely to prejudice the prerogative or those laws that were inconsistent with the constitution or international agreements.239 (v) Reversing devolution: The suspension o f the British Guiana Constitution

1-030

Nowhere were the vagaries of decolonisation more evident than in British Guiana, where the process of devolution of colonial power stalled and was reversed with the suspension of the months-old 1953 Constitution.240 In 1952 the British launched a counterattack against communism.24' By 1953, British Guiana had become a “Cold War theatre”242 and “one of the most sensitive

237 Ann Spackman, “Constitutional Development in Trinidad and Tobago" (1965) 4 Socia and Economic Studies 283, 289. 238 Jessie Harris Proctor Jr, “British West Indian Society and Government in Transitior 1920 60” in David Lowenthal and Lambras Comitas (eds), The Aftermath o f Sovereignty (Anchor Books, 1973), pp.31, 55. 239 Proctor, above, p.62. 240 Cary Fraser, "The PPP on Trial: British Guiana in 1953” (2004) 8(1) Small Axe 21 22. See also Spencer Mawby, Ordering Independence: The End o f Empire in the Angluphom Caribbean, 1947-69 (Palgrave Macmillan, 2012), pp.80 92. See M. Shahabudeen, Constitutiona Development in Guyana 1621-1978 (Guyana Printers Ltd, 1978), pp.518 534. 241 Mawby, above, p.80. 242 Lily Ramcharan, “Cold W ar in British Guiana 1953-66: The Trade Union Dimension’ (2005) 94 Round Table 113.

4

IJliCOI.ON1SATION AND CONSl'1 TUTIONAL CHANGE IN THE TWENTIETH CHK1 URY

33

points o f c o n t e n t i o n in th e so -called A n g lo - A m e r ic a n special r e la tio n s h ip ” .243 This w as b e c a u se th e d o m i n a n t p o litic a l figu re w a s th e M a rx is t, m u lti-ra c ia l, n a tio n a lis t le a d e r o f th e P e o p le ’s P ro g re s siv e P a r ty (P P P ), D r C h e d d i J a g a n . He w as a w o r k in g class In d o - G u ia n e s e , w h o g rew u p o n th e s u g a r p la n ta ti o n s a nd w en t o n to s tu d y d e n tis tr y in th e U S w h e re h e m e t a n d m a r r i e d J a n e t R o s e n b e rg , a m e m b e r o f th e Y o u n g C o m m u n i s t L e a g u e in C h ic a g o . T h e 1953 C o n s t i t u t i o n w as a n a d v a n c e o n th e 1928 C o n s tit u ti o n in th e m ove to w a r d s s e lf-g o v e rn m e n t. I t im p le m e n te d m a n y o f th e r e c o m m e n d a ­ tions o f th e th r e e - p e r s o n R o y a l C o m m is s io n a p p o i n te d in 1950 t o e v a lu a te g o v ern an c e in B ritis h G u i a n a h e a d e d b y Sir J o h n W a d d i n g to n . T h e liberal W a d d in g to n C o m m is s io n r e c o m m e n d e d t h a t c o lo n ia l po licy “fo ster th e e m e rg e n c e o f n e w c o m m u n itie s g ro w in g o u t o f o f te n m u tu a lly a n ta g o n is tic e lem en ts, a n d f u r th e r m o r e to . . . assist t h e m by every m e a n s to achiev e p o litic a l m a tu r it y a n d e c o n o m ic viab ility a n d a w h o le s o m e social sy stem a n d w a y o f life.” 244 T he 1953 C o n s tit u ti o n p r o v id e d f o r a b ic a m e ra l legislature. T h e lo w er H o u s e o f A ssem bly h a d a m a jo r ity o f elected m e m b e rs a n d th r e e ex officio m e m b e r s — the C h ie f S ecretary , th e A tto r n e y G e n e r a l a n d th e F in a n c ia l S ecretary .245 T h e u p p er H o u s e , th e S ta te C o u n c il, w a s d esig n ed to re s tra in th e lo w er H o u s e . 246 Six o f its m e m b e rs w ere a p p o i n te d b y th e G o v e r n o r in his o w n d iscretio n, tw o m em bers o n th e adv ice o f th e m a jo rity g r o u p o f th e H o u s e o f A ss e m b ly a n d one on the advice o f th e m in o rity g ro u p . T h e E x ec u tiv e C o u n c il c o n s is te d o f 10 m em bers a n d w a s c h a ire d b y th e G o v e r n o r . Six o f its m e m b e r s w ere elected by the H o u se o f A ss e m b ly a n d o n e b y th e S ta te C o u n c il a n d th re e o f its m e m b e rs were officials. T h e G o v e r n o r re ta in e d legislative p o w ers. T h e G o v e r n o r h a d a veto p o w e r o f legislation a n d c o u ld refuse to p ro v id e his assent. H e c o u ld also reserve laws fo r th e signification o f H e r M a je s ty in a n u m b e r o f cases, in c lu d ­ ing laws th o u g h ts to be in c o n s is te n t w ith th e C o n s titu tio n . In th e 1953 ele c tio n s h e ld u n d e r th e n e w c o n s titu tio n , a n d th e first u n d e r universal a d u l t suffrage, th e P P P w o n a r e s o u n d in g m a jo r ity , 18 o f th e 24 elected seats. F r o m th e o u ts e t, J a g a n as th e n ew C h ie f M in is te r in 1953 criti­ cised th e ro le o f th e S ta te C o u n c il a n d th e ex isten ce o f official m e m b e r s in the E xecutive C o u n c il as a n t id e m o c r a tic .247 H e s a id t h a t “ w e d o n o t feel t h a t we are th e G o v e r n m e n t . ” 248 J a g a n m a d e it clear t h a t his p a r ty w is h e d m o r e expansive c o n s ti tu ti o n a l re fo rm s . D e e p divisio ns d e v e lo p e d b e tw e e n th e 243 Rafael Cox Alomar, Revisiting the Transatlantic Triangle: The Constitutional Decolonization of the Eastern Caribbean (Ian Randle Publishers, 2009), p.59. 1,4 Great Britain Colonial Office, British Guiana Report of the Constitutional Commission 1950 51 and Despatch from the Secretary of State for the Colonies to the Governor of British Guiana, 6 October 1951 (London: Her Majesty’s Stationery Office, 1951 No. 280). ’45 BG Const s.43. 46 Ronald V. Sires, “ British Guiana: The Suspension of the Constitution” (1954) 7 West Pol Q 554, 563. 247 Cheddi Jagan, “We Harbour No Illusions”, speech by Chief Minister in British Guiana House of Assembly (June 17, 1953), available from Odeen Ishmael, “The Suspension of the British Guiana Constitution 1953 (Declassified British Documents)” (GNI Publications, August 2004), http://www.guyana.org/govt/declassified_british_documents_/953.html [Accessed February 25, 2015], ■4fl Confidential Memorandum for Constitution Commission (1954), para.30, quoted in

1-031

34

FOUNDATIONS

n o m i n a t e d a s p e c t o f th e E x ec u tiv e C o u n c il a n d th e electe d e le m e n ts, w h ich im p a c te d g o v e r n a n c e in th e c o lo n y . T h e B ritish f o r m e d th e view t h a t th e P P P m in is te rs w e re in c a p a b le o f g o v e r n in g r e s p o n s ib ly a n d fe a r e d a n a r c h y .- 49 D e s p ite a c c e p tin g th e r e c o m m e n d a t io n s o f th e W a d d i n g t o n C o m m is s io n for p o litic a l a d v a n c e , B ritish p o lic y m a k e r s r e m a in e d scep tical o f th e m a tu r ity o f G u ia n e s e n a t io n a li s t le ad ers a n d th e y w e re especially su sp ic io u s o f J a g a n a n d d is tu r b e d b y h is p o litic a l rh e to ric . U n d e r p r e s s u r e f r o m th e U S , B ritain d i s p a t c h e d so ld ie rs a n d m a rin e s w h o la n d e d in th e c o lo n y a few m o n t h s after th e 1953 elections. T h e n e w ly -m in te d B ritish G u i a n a C o n s t i t u t i o n w a s sus­ p e n d e d in o r d e r t o d e s ta b ilise th e P P P a n d J a g a n . T h e S e c r e ta ry o f S ta te for th e C o lo n ie s O liv e r L y t tle to n said in 1953 t h a t “ H e r M a je s t y ’s G o v e r n m e n t a re n o t g o in g to a llo w a c o m m u n is t s ta te to be o r g a n is e d w ith in t h e B ritish C o m m o n w e a lt h . ” 250 S u s p e n s io n w a s effected t h r o u g h O r d e r s in C o u n c il a n d lo c al legislation w h ic h in t r o d u c e d e m e r g e n c y m e a s u r e s a n d re v e rte d legislative a n d executive p o w e r s to th e G o v e r n o r . 251 T h e le g isla tu re w a s p r o r o g u e d a n d t h e elected m in is te rs w ere r e m o v e d f r o m th e ir p o r tfo lio s . J a g a n w as a r r e s te d a n d im p r is ­ o n e d . T h e P P P m in is te rs w e re r e m o v e d f r o m office a n d th e G o v e r n o r was giv en full p o w e r to m a k e d ecisio n s w i t h o u t th e g u id a n c e o f th e Executive C o u n c il. A n in te r im c o n s ti t u t i o n w a s p r o m u l g a t e d t h r o u g h a n O r d e r in C o u n c il. A w h o lly n o m i n a t e d E x ec u tiv e C o u n c il r e s u m e d a n a d v is o r y ro le tc th e G o v e r n o r a n d a w h o lly n o m i n a t e d u n ic a m e r a l b o d y r e p la c e d th e b ic a m ­ e ra l sy stem e s ta b lis h e d in 1953, b e c o m in g “ th e first le g islatu re in th e history o f th e c o lo n y to b e w h o lly w i t h o u t a n electe d e le m e n t.” 252 I n la te 1953, a c o m m is s io n c h a ir e d b y S ir J a m e s R o b e r t s o n w as a p p o in te d to lo o k in to th e r e a s o n s f o r t h e s u s p e n s io n a n d m a k e re c o m m e n d a tio n s fo r f u r th e r c h a n g e s. T h e R o b e r t s o n C o m m is s io n c o n c lu d e d t h a t th e 1953 C o n s t i t u t i o n w a s n o t t o b la m e f o r th e “ s e tb a c k to o r d e r ly c o n s titu tio n a l p r o g r e s s ” a n d in s te a d la id re s p o n s ib ility w ith th e P P P . 253 T h e R o b e r t s o r C o m m is s io n r e c o m m e n d e d “ a p e r i o d o f m a r k i n g ti m e ” in realisin g selfg o v e r n m e n t.254 S ince th e s tr e n g th o f th e P P P w as vie w ed as th e s o u rc e o] th e p o litic a l p r e d ic a m e n t in B ritis h G u i a n a , c o n c e r te d effo rts w ere m a d e tc f u r th e r w e a k e n J a g a n . T w o - p a r t y p o litic s in B ritish G u i a n a w a s v ie w ed a: essen tial f o r f u r th e r p o litic a l d e v e lo p m e n t. T h e B ritish G o v e r n m e n t e n c o u r ­ a g e d o p p o s iti o n w ith in th e P P P a n d th e b r e a k a w a y o f F o r b e s B u r n h a m . T lu d e p a r t u r e o f B u r n h a m , a n A f r o - G u ia n e s e le a d e r in th e P P P , t o e s ta b lis h th
1 ( )

! i s V! H ) N

\ M > t O N S 1II til IONA I ( HAN OI

IN I III

I W i N 111 I 11 < ' l i M O R V

35

people A N aiio iu il C o n g re s s , led to th e d em ise o f lhe WIT as a m u ltira cial party an d c o n t r i b u te d to a f r a g m e n ta tio n in the n a tio n a lis t m o v e m e n t an d pjii’tv politics a lo n g racial lines th a t still d o g s G u y a n a t o d a y ." '-' (c) 1 he fcdeial e x p e r im e n t As the tw e n tie th c e n tu r y p ro g re s s e d , th e U K oll'ered fe d e ra tio n a n d closer political u n i o n s as the r o u te to d e c o lo n is a tio n for C a r i b b e a n territories. In S eptem bei 1947. th e M o n te g o Bay C o n f e ie n c e w as c o n v e n e d by th e C olonial S ecretary to discuss p r o p o s a ls foi clo ser u n io n in th e C a r ib b e a n , lh e q u e s tio n o f a W est In d ia n fed eratio n w as n o t a new o n e a n d h a d been raised in te rm itte n tly by B ritish officials a n d C a r i b b e a n n a tio n a lis ts fro m the second h a l f o f the n in e te e n th c e n t u r y .756 In 1932 a six-day W est Indies ( onferen ee w as held in R o s e a u . D o m in ic a betw een unofficial legislatures a n d political leaders fro m T rinidad, B a r b a d o s . G r e n a d a , St. V incent, St. L ucia, M o n ts e rra t, A n tig u a . St. K itts-N c v is a n d D o m in ic a on the po ssib ility o f c l o s e r u n io n betw ee n Trinidad a n d T obago, th e W in d w a r d Islan d s a n d the 1 eevvard Islands. This p r o d u c e d p r o p o s a ls f o r a fe d e ra tio n w ith a u n ic a m e ra l legislature w ith a m a jo rity o f elected m e m b e rs a n d a n E x ecutive C o u n c il responsible fo r g o v e r n a n c e .b7 In a 1943 co n feren c e o f th e C a r i b b e a n L a b o u r C o n g r e s s , n a tio n a lis t la b o u r le ad ers a lso p ressed f o r a f e d e ra tio n . C o lo n ia l politicians a n d British officials h a d different visions o f fe d e ra tio n . The fo rm e r saw fed eratio n as a “ m e a n s to self-g o v ern m en t a n d re g io n -w id e social a n d econom ic im p r o v e m e n t s ” .7'’8 B ritain view ed fe d e ra tio n a k in to a p p r e n t ic e ­ ship. as an in terim p r e p a r a t io n p e r io d “ a llo w in g the im perial p o w e r sufficient a u th o rity to g u id e a n d if necessary c u r b th e in c lin atio n s o f locally elected ledcraI rcpi e s e n ta tiv e s .” 350 In the M o n te g o Bay c o n fe re n c e B ritain b eg an to sh are its o w n m o r e m o d ­ erate p lan s to r f e d e r a tio n .7'’0 A S ta n d in g C lo s e r A ss o c ia tio n C o m m itt e e w as created to f u rth e r a d v a n c e th e d iscu ssio n s a n d it p r o d u c e d a 1950 r e p o r t o n the problem s u r r o u n d in g th e fe d e ra tio n a n d a p r o b a b le fo rm for th e fed e ra tio n . Its d ra ft c o n s titu tio n w as c o n s id e re d a t L o n d o n c o n s titu tio n a l c o n fe re n c e s in 1953 a n d 19 5 6 .761 The British C a r i b b e a n F e d e r a tio n A ct I9 5 6 26’’ a llo w e d IIci M ajesty in C o u n c il to p ro v id e lo r a f e d e ra tio n in th e W est Indies. The IJK West Indies ( F e d e r a tio n ) O r d e r in C o u n c il 1957 estab lish ed the F e d e ra tio n

■ C ary Eraser. ' f lic P P P on t r i a l - British G u i a n a in 1953'' (2 0 0 4 ) 8(1) Sm all Axe 21. 21 See also N alini Per rant ''G uerrillas G a m e s an d G o v e r n m e n la l il y " (2 0 0 1 ) 5(2) Sm all A x e 21, ’ Lloyd B rniilnvailc. " P rogress t o w a r d I e d c r a tio n . 1938 1950" ( 1 9 s 7 ) 6(2) S o c ia l and L con om ie S tu d ie s (Special Issue: 1 e d c ra tio n o f the W est Indies) 133. 133 37. l h e W e st Indian ( o n f e r e n e e . R o s e a u . D o m in i c a . British - W est In dies. Proceedings A o'. l>i intery. Oclo'oet N o v e m b e r 19 3-1). S ee a ls o G reat Britain. R e p o r t o f lhe C lo se r 1 Inion ( on im ission ( l e e w a r d Islands. W in d w a r d Islands. 1 rinidad and T o b a g o ) (A p ril 1933) C m d 1383. 1932 33. R afael C o x A lo m a r . Revisiting the house thin tic triangle: The Constitutional Ihroloni ation "I the l.ashrn ( oribbeon ( l a n R a n d le P ublishers. 2009). p .7. S pen cci M a w by. Ordering Independence: I In Pud of Umpire in the Anglophone Caribbean.

164

n1 N'M'l Y PROBI.I-M: ARb ( ARIBBFAN CONST IH ITK )NS "OUR OWN"?

61

an attempt like this of citizens trying to get involved. They dismissed us as a bunch of nincompoops, and proceeded to get some submissions, maybe from the Bar Association or one or two other people and tinkered a little with the constitution. Their concern in these constitutional conferences in Marlborough House was not the fundamentals of governance, but what little power they could get.” 439 was significant imperial influence on and control over the making of independence constitutions. This varied from territory to territory because the British had different levels of engagement in the processes leading to inde­ pendence and independence constitutions.440 In some Caribbean territories, the Colonial Office (later the Foreign and Commonwealth Office) undertook direct responsibility for the drafting of the constitution. In Dominica after the declaration by the Premier to seek independence, preliminary talks were held in March 1977 in London, followed by a constitutional conference in May 1977 in London.441 The conference failed to resolve key differences between the Government and opposition on whether Dominica should become a republic and regarding the composition of Parliament. Further negotiations after the conference in Dominica achieved some consensus on the outstand­ ing matters.442 The Foreign and Commonwealth Office then undertook the drafting of the constitution in collaboration with the Attorney General of Dominica.443 Even where local officials and legislators drafted the independ­ ence constitutions, they still bore the imprint of the Colonial Office because these constitutions maintained the framework for responsible government gradually set up in a series of earlier constitutions drafted by civil servants at the Colonial Office. The constitutions also borrowed heavily from independ­ ence constitutions in Nigeria (1960) and Sierra Leone (1961) and which the Colonial Office had a hand in crafting. Later Caribbean constitutions looked to earlier ones as models. William Dale, a former legal adviser to the Commonwealth Office, described the Colonial Office as “tailoring” final independence constitutions and he ?>aid that this exercise was “often largely a matter of scissors and paste” .444 1 1 is observation captures the dearth of innovation in the making of independ­ ence constitutions, though it may understate the role played by local elites in the process. Leading legal luminaries in Trinidad and Tobago had outsize importance in the drafting of the independence constitution. Ellis Clarke, the constitutional adviser to the Cabinet, had overall responsibility for draft­ ing, maintaining close contact with the Colonial Office 445 Influenced by the

There

4W Renwick Rose. “Constitution Review: The Experience of St Vincent and the Grenadines" (speech by a member of the Constitution Review Commission of St. Vincent and the Grenadines, noi dated), p.3, available at hllp:llwww.crforumtt.orglurchiveslCRF^coiifermce_Rost\jv'(>sentiition./Hlf [Accessed February 25, 2015]. 44,1 Dag Anckar, “Constitutional Law and Colonial Heritage: Amendment Methods in Former British Colonies' (2012) 3 International Journal of Politics and Good Governance 1, 12. 441 N.J.O. Liverpool, “The Politics of Independence in Dominica” (1978) 4(2) 1SLR Bulletin of Eastern Caribbean Affairs 20, 21. 44- Liverpool, above, 22. 443 Liverpool, above, 23. 444 William Dale, “The Making and Remaking of Commonwealth Constitutions” (1993) 42 ICLQ 67, 68. 44' Hamid Ghany, “ Understanding our Constitutional Foundations in a Society and Region

1 050

62

FOUNDATIONS

submissions made by Hugh Wooding, a prominent Trinidad and Tobagt barrister representing the Bar Council, Trinidad and Tobago changed cours< during the consultation period to adopt a concise bill of rights modelled 01 the Canadian Bill of Rights I960.446 Similarly, the Jamaica independent Constitution was drafted in Jamaica by a joint legislative committee madi up of elite politicians in the government and the opposition. The goal was t< achieve consensus before the constitutional conference in London. The legis lature approved the draft constitution prior to the conference in London am a few changes were made in London. One member of the Jamaica House o Representatives declared that “[tjhe Constitution which is brought forward i something that has been moulded and shaped by Jamaicans in Jamaica .” 44 This fundamentally overstates democratic participation since the commit tee gave a mere 30 days for the public to offer written submissions on th draft constitution .448 Nevertheless the constitutions do reflect the outcome of the negotiations between “various shades of [partisan] political opinion at the constitutional conferences and before.449 Specific features such as th institutionalisation of the position of “Leader of the Opposition” reflect th influence of local players, as do structural features such as bills of right which were used to “lock in the constitutional status quo and therefore mini inize the political uncertainty after independence and protect their politics futures.” 450 Independence did not lead to a change in “colonially structured powe relations”.451. While British authorities often adopted a condescending an patronising attitude towards the colonial leaders,457 they also cultivated an championed moderate nationalist leaders who would advance constitution* development in a way that would maintain the social and economic statu quo. As a result, the constitutions produced were not marked by dramati innovation. Many closely involved in the process saw the new constitution as an evolution in the advance of responsible self-government and not radical constitutional departure warranting far-reaching debate. Caribbea nationalist leaders heralded the new constitutions as the continuity of wel established political traditions. In 1977, on the eve of its independenci Dominica’s Premier announced that his country intended “to base our prc gress on continuity taking from the past the institutions and traditions th* must serve as a catalyst for future development.” 453 Though, as Margan Demerieux points out,

Steeped in British Traditions’" (SALISES and University College London Conference. “ Beyor Westminster in the Caribbean: Critiques, Challenges and Reform’", September 11, 2014). 446 See below para.9- 010. 447 Proceedings of the House of Representatives 1961 2. 448 Lloyd Barnett, The Constitutional Law of Jamaica (OUP. 1977), pp.30 31. 449 Ilimls v R (1976) 24 W.I.R. 326 at 331; [1977] A.C. 195 (PC Jam) at 212. 4',Q Charles Parkinson, Bills o f Rights and Decolonization: 7'he Emergence o f Domestic Ilium Rights Instruments in Britain’s Overseas Territories (OUP, 2007), p .175. 451 Clive Thomas, The Rise of the Authoritarian State in the Periphery (Monthly Review Pre: 1984), p.50. 452 Rafael Cox Alomar, Revisiting the Transatlantic Triangle: I lie Constitutional Decolonizath o f the Eastern Caribbean (Ian Randle Publishers, 2009), p,69. 453 Dominica, Report of the Dominica Constitutional Conference held in Marlborough Hon London (HMSO, 1977), Cmnd.6091, p.15.

„

nil

11)1M

i l V I’ K o m I M : A K i : C A R l l J U I A N < O N S 11 n II I O N S

OIIK O W N " ?

63

*[tJhc usages and institutions of Wcslininster had been practiced on behalf of the public of the population of the states for a relatively short time •liven that adult su lira go was introduced in the late 40’s and 50Y*.454 in designing the independence constitution, the Trinidad and Tobago C o n s t i t u t i o n ( ommission noted that there was little reckoning with the basic question what kind ot constitution and system ot governance does this c o u n t r y need?4-" Echoing this sentiment, Mohammed Shahabudeen described the 1^66 independence ('(institution of Guyana as falling far short of “a con­ s i d er e d o r a taithful expression of the special character of the nation” *'l(’ A constitutional identity emerges through dialogue and experience it rellects the origins of the constitution and represents a combination of politi­ cal aspirations and^ commitments.457 Constitutional identity is not fixed, it e v o l v e s over timeY 6 Harding and F.eyland compare constitutional texts to ill-fitting uncomfortable leather shoes that adapt to meet the feet of the wearer over time. 174 Through interpretation and due to their stability, older ( aribbean constitutions have gained some authority and a measure of legiti­ macy While these older (aribbean constitutions are accepted as the valid higher law, questions about their ownership, suitability and defendability persist and have made discussion about constitutional reform an ever present dimension of political life in the Caribbean .460

4"■* M argaret D e m e r ie u x . I'liinhiineiital R ights in Coniinoinvealtli C aribbean C onstitutions (I a e u l l v o f I aw I ibrury U W I . I9 ‘)2). p . 12.

*" Constitution ('ommission. “ Report of lhe Constitution Commission ol Trinidad .ind I obago ‘ ( I rinidad and Tobago. 1974). para.25. 4 M. Shahabudeen. ( bnstitutional Development in (iityana 1621 /972 I Ol.luinl

[Accessed February 25. 2015). 2/4 1 1 Const s.49A. 2I* Above. -’,Y’ Speech delivered at a regional Conference on Caribbean Constitutional Reform in Barbados, 2002. as quoted in article D.A. Cox. "Excessive Prime Ministerial Power" S i I w in S tar (Castries, February 21. 2011). available at h tip :llstlu riu stiir.ctm le\cessive-p rim c-n u n isteriu lpuw erleonm ieiit-page-II [Accessed February 25. 2015], 277 Cox. above. :7K See below paras 8 037 8 039. 1?l' A&B Const ss.99(i). 104(1); Bah Const arts. 107( 1). 116(2)(d): Bds Const ss.89(2). 90(1). 91(1); B/e Const s. 105(2); Dom Const ss.84(I), 91(1); Gren Const s.83( 1 ); Jam Const ss.l 11(3). 124(2). 129( 1); SKN Const ss.77( 1). 84( 1); SLA I Const ss.85( 1). 92( 1); SVC. ( oust ss.77( 1). 84(1); r i Const ss.l 10(3), 120(2). 122(3). 124(2). 2WI A&B Const s.I()l(2)(c); Bah Const a rt.I ll; Bds Const s. 100; B/e Const s. 107(1); Dom Const s.86(1); Jam Const s.128; SKN Const s.79(2)(c); S! U Const s.87(2)(e): SVG Const s.79(2) (c); IT Const s. 135. ’Ki Lloyd Searwar. “The Small State in the Caribbean: Policy Options for Survival" in Jorge Rodriquez Berulf. J . Peter Figueroa and J . Ldward Green (eds). Conflict, Peace an d D evelopm ent m the Caribbean (Palgrave MacMillan. 1991), pp.219. 235.

1 PRIMh MINISTERIAL GOVERNMFNT

103

ID Control of Cabinet The Prime Minister forms and chairs the Cabinet. He or she typically also determines the size of the Cabinet.28- The Prime Minister may seek advice in determining these matters but he or she alone is responsible for making these decisions.283 There is no guarantee of appointment to the Cabinet, no matter how well-regarded or competent a member of Parliament is. Cabinet minis­ ters have no security of tenure. They hold office at the pleasure of the Prime Minister, who can advise the Head of State to revoke ministerial appoint­ ments or re-shuffie allotted portfolios. As chair, the Prime Minister can set the agenda and guide the discussions on important issues. Ministers must take care not to offend the Prime Minister for fear that their continuance in office will be threatened .284

2-026

(ii) Control over the legislature The Prime Minister enjoys considerable control over ordinary law-making. He or she usually controls the majority of elected members of Parliament who vote along party lines. The Prime Minister advises on the appointment of a majority of the members of the Senate or nominated members in unicameral legisla­ tures.285 In most countries, this power of appointment carries with it the power to terminate the appointment at any time.286 In an indirect way, the Prime Minister’s influence may extend to the appointments to the Senate made by the Governor General. Since the Governor General holds office at the pleasure of the Prime Minister, he or she may be reluctant to appoint as independent sena­ tors persons who are likely to be outspoken critics of the government. A Prime Minister's control over the legislature is substantially enhanced by the relatively small size of Caribbean parliaments and the high proportion of members of Parliament who are ministers, leaving little or no room for a back bench that can serve as a check on government. In the very small parliaments in the Eastern Caribbean in which elected members are often fewer than 20, it is not unusual for all the elected government members of Parliament to be given ministerial responsibilities.287 Even in larger parliaments of Trinidad and Tobago and Jamaica, which have a lower House with 41 and 63 elected 282 A&B Const s.70(2); Bah Const art.72(2); Bds Const s.64(1): Jam Const s.69(1) where there is a stipulation that the Cabinet must not be less than 11 members other than the Prime Minister. 2S1 A&B Const s.69; Bah Const art.73; Bds Const s.65(2); B/e Const s.40; Dom Const s.59; Gren Const s.58; Jam Const ss .68 69; SKN Const s.52; SLU Const s.60: SVG Const s.51: TT Const s.75 76. 2W l.loyd Barnett. /7/e Constitutional Law of 'Jamaica (OUP. 1977). pp.218. 63. 28'' 10 of the 17 senators in A&B Const s.28(2): 9 of the 16 senators in Bah Const art.39(2); 12 of the 21 senators in Bds Const s.36(2); 6 of the 13 senators in Bze Const s.61(4)(a); 7 of the 13 senators in Gren Const s.24(2)(a); 13 of the 21 senators in Jam Const s.35(2); 6 of the 11 senators in SLU Const s.24(2); 4 of the 6 senators in the unicameral Chamber in SVG Const s.28(a); 16 of the 31 senators in TT Const s.40(2)(a). ’*A See A&B Const s.31(T)(f): Bah Const art.43(l)(g); Bds Const s.39(l)(l); Bze Const s.64(l) (e); Dom Const *.35(2); Gren Const s.27(2)(e); SLU Const s.27(2)(e); SVG Const s.29(2); SKN Const s.31(2); TT Const s.43(2)(e). •87 Matthew Bishop. "Slaying the ‘Westmonster" in the Caribbean? Constitutional Reform in St Vincent and the Grenadines” (2011) 13(3) British Journal of Politics and International Relations 420.

2-027

$% *^

n -J

j

104

CONSTITUTIONAL STUCTURES OF GOVERNMENT

persons respectively, a significant number of these persons are appointed min­ isters. Government members of Parliament who are not in Cabinet are often appointed as junior ministers, parliamentary secretaries, deputy speakers, or to important positions in the state sector. This makes it unlikely that a motion of no confidence in the government will succeed, since Cabinet members are constrained in openly criticising the government and remaining in the Cabinet. As a matter of practical reality, the constitutional requirement that the Cabinet is collectively responsible to Parliament is not meaningfully observed. Finally, the power of dissolution of Parliament is one of the most potent mechanisms of control of the legislature for a Prime Minister. Even if he or she has lost the confidence of the House, the Prime Minister has the option of advising the Head of State to dissolve Parliament and force new elections.288 4. Caribbean Senates

(a) Function of the Senate289 2-028 f

I

I i

i i ; r t f L.—

An integral aspect of the twentieth-century struggle for self-government in the Anglophone Caribbean was reducing the number of nominated members sitting in colonial legislatures and increasing democratic participation through elected members chosen with a wider franchise.290 The retention of appointed legislators in most of the independence Constitutions was nevertheless justi­ fied on the grounds that it provided a check on the power of popular political parties, and that it offered a voice in Parliament to individuals of special talent or representing specific interests who could make an important con­ tribution to national affairs but who, for a variety of reasons, were reluctant to place themselves before the electorate. The notion of Caribbean Senates providing an effective check on abuse or intemperance on the part of its “lower” counterpart is, however, suspect. When the entire membership of the Senate is comprised of appointed persons and the other chamber com­ prises persons freely elected on the basis of universal adult suffrage, there is a democracy deficit if the Senate is allowed to obstruct or frustrate the busi288 Ang Const s.63(2); A&B Const s.60(l); Bah Const art.66(2); Bds Const s.61(2); Bze Const s.84(4); Ber Const s.49(l); BVI Const s.84(2); Cl Const s.84(2); Dom Const s.54(4); Gren Const s.52(4); Jam Const s.64(5); Mont Const s.67(2); SKN Const s.47(4); SLU Const s.55(4); SVG Const s.48(5); TT Const s.6 8 (l); TCI Const s.57(2). See also Francois v Compton LC 2002 HC 10 (CARILAW) April 22, 2002 (HC SLU). affirmed in LC 2003 CA 2 (CARILAW) June 18, 2003 (CA SLU). 289 See Hamid Ghany, ‘‘The Relevance of the Senate in a Modem Democracy” in Evolution o f a Nation: Trinidad and Tobago at Fifty (Parliament of Trinidad and Tobago, 2012) pp.79, 96-99; Kirk Meighoo, “From Legislative Council to House of Representatives: Promoting or Hindering Democracy” in Parliament of Trinidad and Tobago Evolution of a Nation: Trinidad and Tobago at Fifty (2012), pp.25, 41-43; Francis Alexis, Changing Caribbean Constitutions, (Antilles Publications, 1983), pp.27-31, 58-61; Francis Alexis, “H Aubrey Fraser: Eminent Caribbean Jurist” (Antilles Publication, 1985), pp.38-40; Lloyd Barnett, Constitutional Law of Jamaica (OUP, 1977), pp.209-13; Trevor Munroe, “The Politics of Decolonization: Jamaica, 1944-1962” (1972) Jamaica Law Journal 58, 62. 290 Ann Spackman, “Constitutional Development in Trinidad and Tobago” (1965) 14 Social and Economic Studies 283. See also Justice Telford Georges, “Creating Constitutions in the Eastern Caribbean” (The Dr Eric Williams Memorial Lecture Series, Tenth Lecture, Port of Spain, May 2, 1992). See above para.1-028.

4 CARIBBEAN SENATES

105

ness of Government. The Constitutions do not, therefore, ordinarily permit the Senate to block measures passed by the lower House. The Senate does, however, have the power to delay the passage of legislation—although, if the measure approved by the House is “a money bill” ,291 the Senate may not delay its passage for more than one month. The length of time for which the Senate may delay other kinds of bills is longer, extending to the next session and usually for periods of up to six months.292 Lloyd Barnett divides the functions of the Jamaica Senate into five cat­ egories, namely: (a) the revision of legislation; (b) the delaying of unpopular legislation; (c) the initiation of measures and discussions on matters for which the House of Representatives is unable to find sufficient time; (d) the provi­ sion of a high standard of debate in the discussion of national affairs; and, (e) the taking up of cases of individual grievances and special hardships.292 His observations regarding the role of the Jamaica Senate can easily be applied to the Senates of the other states. Senators may “warn and comfort but not command” ,294 and in practice, the major part of the work of the Senate in Caribbean states has been consigned to reviewing and revising legislation.295 Tf the Senate’s role is assessed from this limited standpoint, then it is probably a harsh judgment to conceive of that body as serving little useful function and of being a mere “rubber stamp” .296 In the important realm of constitutional amendment, the Senate does enjoy some muscle. In most states it enjoys a power of veto297 that varies according to the situation and the state concerned. Some states with bi-cameral legislatures require a two-thirds majority of all the members of each House for certain constitu­ tional amendments.298 This effectively means that in Jamaica, where there are no independent senators, at least one opposition senator must vote in support of an amendment to a deeply entrenched constitutional provision. In Trinidad and Tobago a two-thirds majority of the Senate is required (along with a three-fourths majority in the House of Representatives) to amend the most deeply entrenched provisions of the Constitution ,299 thus ensuring that amendment of the most deeply entrenched provisions cannot be accomplished only by the votes of the government appointed members.

291 See A&B Const s.56(1); Bah Const art.62(1); Bds Const s.57(l); Bze Const s.80(1); Gren Const s.49(l); Jam Const s.58(l); SLU Const s.51(l); TT Const s.6 6 (l). 292 See A&B Const 1981 s.55 where the period is three months; Bah Const art.61 where the period is nine months; Bds Const 1966 s.56 where the period is seven months. See also Bze Const s.19: Gren Const s.48; Jam Const s.57; SLU Const s.50; TT Const s.65. 29’ Lloyd Barnett, The Constitutional Law oj Jamaica (OUP, 1977), pp.218, 288. 294 Barnett, above, p.209. See also Constitution Commission, ‘‘Report of the Constitution Commission, Trinidad and Tobago" (Trinidad and Tobago, January 1974) (The Wooding Report), para. 180. 295 Constitution Review Commission, “Report of the Constitution Review Commission. Barbados” (Government Printing Service, 1998), para.46. 2% Constitution Commission, “Report of the Constitution Commission, Trinidad and Tobago” (Trinidad and Tobago, January 1974) (The Wooding Report), para.176. The Commission recommended abolition of the Senate with Parliament consisting of a President and a National Assembly (above, para. 195). See also Francis Alexis, The Constitution anil You: Grenada (UWI/USAID Caribbean Justice Improvement Project, 1991). 297 But sec A&B Const s.47(2), (3), (4), s.79; and SLU Const s.41(3), (4), (5). 298 Bah Const art.54(2)(b); Bds Const s.49(2); Jam Const s.49(4): TT Const s.54(2)(b). 299 Jam Const s.54(3).

106

(ONSIIll

IIONAI

Slir(

||

141 s o i

( > < ) Vi R N VII K I

(h) A p p o i n t m e n t o f s e n a to r s

2 029

lhe 31-member Senate of the 1rinidad anti 1obago Parliament is the largest in the region. Senators are appointed by the Governor General or President, as the ease may be.'uu Some arc appointed by the President in accordance with the advice of the Prime Minister and others in accordance with the advice of the I eadcr of the Opposition. Others still are appointed by the I lead of Stale in his or her own deliberate judgment or else in keeping with specific guidance provided by the Constitution. Senators may thus be appointed to repre­ sent certain defined social, economic or community interests. ’" 1 Senators so appointed are regarded as “independent” in the sense that they do not owe their appointments to and are not removable at the behest of the leadership of cither the governing or main opposition political party. In the Bahamas, in the ease of 3 of the 12 Senators appointed by the Governor-General, acting on the advice of the Prime Minister, the Prime Minister is obliged first to consult the Leader of the Opposition and to ensure that in the appointment of these three Senators the political balance of the Senate reflects that of the House of Assembly at the relevant time.-102 This obligation on the part of the Prime Minister is justiciable and can successfully be challenged on Weilnesbury principles.3" 3 The senators in Jamaica are all appointed on the advice respectively of the Prime Minister and the Leader of the Opposition, lhe Constitution gives them security of tenure since they are appointed for the life of the Parliament. Innovative means have been used by the political leaders, however, to com­ promise this security and to keep in line the senators appointed on their advice. 1wo former senators of the Jamaica Labour Party (JLP) claimed, in November, 2013, that their unwilling resignations from the Senate, accepted by the Governor General, were the result of a process where their leader in Parliament, the Leader of the Opposition, had previously requested them to sign undated resignation letters as well as a letter authorising the leader to date and submit these letters to the Governor General under specified condi­ tions.304 One of the senators, Arthur Williams, instituted legal action against the Leader of the Opposition who had dated and submitted Williams’s letter to the Governor General in circumstances that apparently bore no relation to the specified conditions. Williams applied for an interlocutory injunction to restrain the opposition leader from filling the vacancy that arose upon his "resignation". Regrettably, the court which heard the interlocutory appli

See A&B Const s.28; Bah Consl art.39; Bds Const s.3ft; B/e Const vftl: (iren Const s.24: Guy Const art.52; Jam Const s.35; SLU ( 'onsl s.24; SVG Const s.24; I f Const s.40. 1,11 In St. Lucia, for example, two senators are appointed by the Governor General acting in his or her own deliberate judgment “after he has consulted those religious, economic or social bodies or associations from which he considers that such Senators should be selected". w See Bah Const art.40. ,in Christie v Ingraham (2008) 74 W.I.R. 1 (SC Bah). See below para.3 008. 1114 The conditions had lo do with parliamentary deliberations on Jamaica s accession to lhe appellate jurisdiction of lhe Caribbean Court of Justice. The JLP confirmed that it has been a lradilion for its senators to submit resignation letters to the party as a condition of their appoint­ ment. See A. Williams. “Williams says Hotness used strategy lo secure Senate resignation" I lie Cleaner (Kingston. November 15. 2013) littivlljiiinaica-gleancr.coinllalestlarlicIc.php.’iil^ W S I [Accessed February 25. 2015].

5. SHARED GOVERNANCE IN I IIE OVERSEAS TERRITORIES

107

cation303 did not advert to what could be described as an arrangement to subvert the constitutional structure by compromising the guaranteed security of tenure of senators. The court somewhat surprisingly preferred to accept the submission that a grant of the interlocutory injunction would prejudice the opposition leader (and his party) by preventing him from replacing the senator who had “resigned’’. 5. Shared Governance in the Overseas Territories

Each of the UK overseas territories in the Caribbean—Anguilla, Bermuda, 2-030 Cayman Islands, Montserrat, Turks and Caicos Islands, and the British Virgin Islands—is a separate constitutional unit distinct from the other, and while each territory has a subordinate constitutional relationship with the UK, it is also a discrete entity from the UK government.306 These territories are categorised by the United Nations as non-self-governing territories.307 Anguilla, Cayman Islands, Montserrat, and the Turks and Caicos Islands had been part of the West Indies Federation, the end of which led to rapid decolonisation in the Anglophone Caribbean between 1962 and 1983.308 These smaller territories have not followed the same course to independence and thus far appear not to be headed in that direction.309 Bermuda has had the most sustained discussions about independence but this has not produced a broad-based decision. One of the early colonies of Britain, Bermuda, has had representative government since 1620 and is the most advanced of the group in terms of self-governance. A 1995 referendum rejected the option of independence, though important reforms to the Constitution took place in 2001 and 2003.3,° (a) Shared executive and legislative powers A form of shared government exists between the UK and local politicians in the overseas territories that follows the broad lines of responsible gov­ ernment at Westminster. This presents a contradiction, as legislatures that model Westminster “behave as though they were sovereign Parliaments” even though the Governor and UK government have substantial power to veto their decisions.311 Local legislatures in the Caribbean overseas territories comprise, in the main, representatives freely elected by the people of the territory. Except in the case of Bermuda, one or two nominated and/or ex 11,5 Sec Williams v Ifulness [2013] J.M.S.C. Civ. 185 (SC Jam). 1nfi Lan Hendry and Susan Dickson. British Overseas Territories Law (Hart Publishing, 2011), p.14. 107 “The United Nations and Decolonization: Non Self Governing Territories” http:Hww\v. tin.urglenl(lecolonizationhionselfguvterritories.shtivl [Accessed February 25, 2015]. 3"8 Sec above paras 1 032 1 033. w Peter Clegg, “Independence Movements in the Caribbean: Withering on the Vine?” (Island Independence Movements in the 21st Century Workshop, University of Edinburgh, Scotland, Scptembcr8 10,2011). ” u Her Const (Amendment) Order 2001; Ber Const (Amendment) Order 2003. 311 Thomas Russell, “ UK. Overseas Territories Qualified Nationhood-Systemic Problems” (2000) 355 Round Table 345, 350.

2 031

1OS

( O N S t 11 I I l< >N \ !

s i I K I I R ! -S ( ) l

GOV I R \ M I N I

ollicio members, including the Attorney (iencral, also mi in Ilie legislature.’’1-’ Most of the territories haw imieameral legislatures comprising 1 ler Majesty and a House of Assembly or Legislative Assembly. Bermuda, the most con­ stitutionally advanced of the territories, has a bicameral legislature which has existed since 1888. It has an 11-member Senate and a 3b-member House of Assembly. Unless sooner dissolved, the life of the legislature is live11’ or four years.Ul Anguilla, Bermuda and the Cayman Islands follow the firstpast-the-post system, while the British Virgin Islands, lurks and Caicos Islands, and Montserrat have incorporated proportional representation. bxecutivc authority in the territories is vested in I ler Majesty. She is represented in each territory by a Governor appointed by the Queen who holds oil ice at her pleasure.-’1’ The people of the territory do not par­ ticipate in the selection of the Governor. The Governor is the head of the government of the territory and reports to the UK Secretary of Slate. I hc Governor's powers arc not limited to those stated by the Constitution or other local law. 1hey also derive from powers conferred by Acts of the IJK Parliament or assigned by Her Majesty. ’ 1'1 Ihc Governor shares executive power in the overseas territories with a Cabinet or 1Executive Council which is comprised of a Premier or Chief Minister and ministers drawn from the elected members of the legislature, bxeept in Bermuda, the Cabinet is chaired by the Governor.,w The constitutional formulation across the territories is not uniform but essentially, the Governor appoints from amongst the elected members of the legislature a Chief Minister or Premier who has the support of the majority of members in the House of Assembly.3 ix The Cabinet ministers are appointed b> the Governor on the advice of the C hief Minister or Premier. 1he Cabinet is collectively responsible to the House of Assembly31’’ and has responsibility for the formulation and implementation of government policy, except in those areas for which the Governor has special responsibility. ’ ’ 0 Ihc latter nor­ mally includes such matters as the administration of the courts, external allairs, defence, internal security and the public service, for which the UK 11 ’ A n g C o n s t s.35(2): BVI C o n s t s 63(1): C I C o n st s.6()( I )(c); M o n t C o n st s.4S( 1): I C l ( oust s.4 3 (2 ). "

Ang CunM s.73(3); Ber Const s.49(2): iVIonl Const s.67(3). !U Cl Const s.7(3): TCI Const s.57(3) and BVI Const s.H4(3). -1|> Ang Const s 19(1): Ber t oust s.l7(|); BVI Const s.35(1): Cl ( oust s.29; Mont Const s..22(l): I C l Const s.23( I ). il,) Ang Const s.l9 0 ; Ber ( onst s. 17(2); BVI Const s.35(2): Cl ( oust s.31(1) and (2): Mont Const s.22(2); TCI Const s.23(2). !l Ang Const s.33(l); BVI Const s.49(1): Cl Const s.46(1): Mont Const s.42(1); I Cl Const s.3 9 ( 1 ). The Governor does not sit in the Cabinet in Bermuda (Ber Const s.57( I )). The Bermuda Governor, however, ehairs a Governor's Council that considers such matters as external allairs, defence and internal security for which the Governor is responsible. ilK Ang ( onst s.24: Ber Const s.5S( 1): BVI Const s.52( I): Cl Const s.49: Mont Const ».33( I); 1( I Const s.31(2). ,i't Ber Const s.57(2): BVI Const s.47(3); Cl Const s.44(3); Mont Const s.32(3). In the lurks and Caicos Islands, each member of Cabinet charged with responsibility for any matter must exercise such responsibility in accordance the principle of the collective responsibility of the members of the Cabinet for the policies and decisions of the Government (1 C'l Const s. 36(4)(c))) BVI Const s.47( 3); C’l Const s.44(3): Mont C oust s.32(3). The comparable respective pro visions in Ang Const s.28( 1) and Ber Const s.57(2) are worded somewhat differently. I here is no clear statement of the principle in the 1C[ Const s.3o.

5. SHARED GOVERNANCE IN THE OVERSEAS TERRITORIES

109

government generally maintains responsibility.321 The constitutions of the British Virgin Islands, Cayman Islands and Montserrat now provide for national security councils or a national advisory council which advises the Governor on internal security and police matters .322 Through executive and legislative powers the UK maintains firm control over the overseas territories, but given the provision for some local autonomy, which varies in each territory, it is appropriate to regard the relationship with the UK as one of shared governance.323 Peter Clegg describes the balance of power between UK government, the Governors and the local politicians as “complex and sometimes confusing” .324 He acknowledges that the UK has the “upper hand” in making public policy because the Governor’s approval is required for all legislation, but also notes that Governors often try to negoti­ ate and influence rather than impose their will.325 (b) UK control over law-making Subject to the constitution, the local legislatures in overseas territories may make laws for the peace, order and good government for the relevant territory, provided that the same are not repugnant to UK legislation extending to the ter­ ritory. This notwithstanding, the UK can exercise its strong control over legisla­ tion in a number of ways.326 Bills passed by the local legislature must be assented to by or on behalf of Her Majesty before they become law.327 The Governor may withhold assent or reserve the Bill for the signification of Her Majesty’s pleasure.328 In 2011, the Anguilla Governor used this power to refuse to assent to the budget adopted by the legislature and indicated that he had instructions

321 Ang Const s.28(2); Ber Const s.62; BVI Const s.60; Cl Const s.55; Mont Const s.39(l); TCI Const s.37(l). See also UK Foreign and Commonwealth Office, The Overseas Territories: Security, Success and Sustainability (HMSO, 2012), Cmnd.8374, p.14. 322 BVI Const s.57; Cl Const s.58; Mont Const s.45. 323 R (Bancoult) v Secretary of State [2009] 1 A.C. 453 (HL) at [47] [49] demonstrates that the U K ’s legislative powers need not be wielded with the aim of advancing the interests of the territory, but may be effected wholly in the peculiar interests of the UK and at the expense of the people of the relevant territory. 324 Peter Clegg, “Governing the U K Caribbean Overseas Territories: A Two-Way Perspective”, in Peter Clegg and Emilio Pantojas-Garcia (eds), Governance In The Non-Independent Caribbean: Challenges and Opportunities in the Twenty-First Century (Ian Randle Publishers, 2009), p.3. 323 Clegg, above. 326 See Don Mitchell, “New Perspectives in Oppression: The British Foreign and Commonwealth Office and Proposals for Constitutional Reform in the Overseas Territories of Anguilla, Montserrat and the Turks and Caicos Islands” (The Country Conference Series: Beyond Walls, Multidisciplinary Perspectives, UWI Open Campus, Anguilla, April 2011), 2 6 . available at http:llwww.open.uwi.edulsites!defaultlfileslbnccdelanguillalconferencelpapersl mitchell.html [Accessed February 25, 2015]. 327 Ang Const s.57; Ber Const s.35(l); BVI Const s.79(l); Cl Const s.78; Mont Const s.74; TCI Const s.73. 328 In 2010, the Anguilla Governor exercised his power to withhold assent on several occasions. See Don Mitchell, “New Perspectives in Oppression: The British Foreign and Commonwealth Office and Proposals for Constitutional Reform in the Overseas Territories of Anguilla, Montserrat and the Turks and Caicos Islands” (The Country Conference Series: Beyond Walls, Multidisciplinary Perspectives, UWI Open Campus, Anguilla, April 2011), 2 - 6 , available at http:l/www. open. uwi. edu!sites/default/jileslbnccde/anguilla/conference/papersl mitchell.html [Accessed February 25,2015].

( ONStl I I I l«l\AI

S II < IIIRISH!

< iOV I K N M I \ I

lo reserve lhe Bill for signification by Her Majesty.-’" Don Mitchell describes this power as ‘undemocratic, redundant and anachronistic” . ' 10 Refusal by a Governor to assent to legislation normally signals a breakdown in his or her relationship with lhe rest ofC’abinct which approves the presentation ol bills to the legislature. 1,1 The Governor can exercise control over legislation in a more direct and affirmative way through his or her reserve legislative power. With the prior approval of the UK Secretary of State, the Governor is entitled in certain defined circumstances to declare a measure a valid law where the ( 'abinel is unwilling lo introduce a bill or the legislature is unwilling to enact the bill The newer constitutions have restricted the scope ol the Governor's reserve legislative powers. In the British Virgin Islands and Montserrat, these powers are restricted to matters that are urgently required to comply with international obligations applicable to the British Virgin Islands.''' The other legislative controls over overseas territories are metropolitanbased. After a law has been passed by the legislature and assented to by the Governor, it may be disallowed by Her Majesty."" 1his power is rarely exercised1" and is extremely limited in Bermuda, extending only to laws relating to government s l o c k . I n the newer constitutions of the British Virgin Islands. Cayman Islands and Montserrat, the legislature must be given an opportunity to reconsider the law,1-" but this is not the ease in the 2011 1urks and Caicos Islands Constitution. " N Direct law-making powers reside both with the Crown and the UK Parliament which is viewed as sovereign and able to legislate directly for any of its territories. " 9 The overseas territories are still bound by the 1865 Colonial Laws Validity Act, " 11 which provided that law s passed by a colonial legislature were invalid if they were repugnant to UK legislation. Don Mitchell argues that this power should not be exercised except alter consulta­ tion with the territory's Cabinet and legislature.- " 1 finally, the prerogative power of the Crown to make laws for the overseas territories is codified in C orbin. “Self governance deficits in Caribbean Non-independent ( ountties” in lVtcr Clegg and David Killingray. The Non-Independent Territories of the (o rih h ea n and Taci/ic: t 'ontinnity or Change (Institute ol’ Commonwealth Studies. 2012), pp. 16V 179 Don Mitchell. “ New Perspectives in Oppression: The British Foreign and Commonwealth Oflice and Proposals for Constitutional Reform in the Overseas Territories ot Anguilla. Montserrat and the Turks and Caicos Islands” ( The Country Conletence Series: Uevond Walls. Multidisciplinary Perspectives. UWI Open Campus. Anguilla, April 2011). 4. available at Im p:// ww w.open.nwi.ednl sit esldejanlt Ijilcslbnci dehingttillah 2 See above paras 1 049 1 050. 1 or a discussion on autochthon)- in the Commonwealth Caribbean sec Margaret Demerieux, “ Fundamental Rights in Commonwealth Caribbean Constitutions" (Faculty of Law, UWI. 1992). pp. 11 19; R.W. James, and 11.A. 1 utchman, l.aw and the Political Environment in Guyana (Institute of Development Studies, 1984) p.32 so. 353 Guy Const art.3. " 4 R.W. James, “The Constitution of Guyana- A Study of its Dysfunctional Application" (2006) 35 36 Transition Journal 1, 30. 353 Margaret Demerieux, "Fundamental Rights in Commonwealth Caribbean C onstilutions". (Faculty of Law. UWI, 1992). al 318. See also Andrew Morrison. Justice: The Struggle Jar Democracy in Guyana, 1952 I9Q2 (Red Thread Women's Press. 1998). p p .114 129: Percy Ilinl/en, “Creoleness and Nationalism in Guyanese Anticolonialism and Posteolonial Formation" (2004) 8 :1 Small Axe 106. 118. 35(’ Harold Lutchman. "Emergent Constitutional Issues and Problems in the Commonwealth Caribbean: A Review of Some Recent Developments" (undated) cited in R.W. James, "The Constitution of Guyana: A Study of its Dysfunctional Application" (2006) 35 36 Transition Journal 1. 30. 344

6. HYBRID PRKSIDEN UAL SYSTEM IN GUYANA

113

by Dr. Cheddi Jagan. Section 1 of the Constitution describes Guyana as “an indivisible, secular, democratic sovereign state in the course of transition from capitalism to socialism” .357 The inclusion of general principles and bases of the political, economic and social systems drawn from or influenced by the consti­ tutions of Cuba, India, Tanzania and Soviet bloc states also reflect the social­ ist influence.358 The General Principles provide for a wide range of social and economic rights and set out duties on the part of the citizenry. Rudy James and Harold Lutchman wryly observed that none of the lofty general principles dealt with ensuring the accountability of the leadership for their implementation.359 The executive presidency inaugurated by the 1980 Constitution was engrafted onto the existing Westminster-based parliamentary system. A USlike President presides over a UK-style Parliament. The extensive overlaps between the legislative and executive branches from the Westminster system remain, except that in place of the traditional Westminster separation of the executive between a ceremonial and executive head, there is simply an execu­ tive Head of Government in whom sole executive authority is reposed.360 This merger of provisions from divergent systems results in a hybrid product that is neither entirely parliamentary nor presidential, but instead strongly authoritarian. (b) The National Assembly The National Assembly is a unicameral body comprised of 65 members directly elected in accordance with the system of proportional representa­ tion.361 Parliament consists of the President and the National Assembly,362 a retention from Westminster where the Head of State performs largely cere­ monial functions. A Speaker may be elected from outside that number, and a minister appointed from outside the National Assembly may sit in that body as a non-voting member. For electoral purposes, the country is divided into 10 regions or geographic constituencies. The regions return 25 representa­ tives to the Parliament, each region electing at least 1 representative.363 The remaining 40 representatives are derived from national “top-up” lists which each party contesting the elections must provide at the time of an election.364 The Guyana Constitution encourages female representation in Parliament.365 The Representation of the People Act accordingly requires parties contesting elections to have women constitute no less than one third of their listed candidates.366 At general elections, a single vote is cast by each voter and a vote for a party’s geographical constituency list is simultaneously a vote for that party’s Guy Const art.l. See below para.9 012. R.W. James, “The Constitution of Guyana: A Study of its Dysfunctional Application’’ (2006) 35 36 Transition Journal 1, 30. 360 Guy Const art.99(1). 161 Above, art.60(2). 302 Above, art.51. 3io Regjon 4 returns as many as seven representatives. 364 Guy Representation of the People Act Cap 1:03 s.l 1A. 3‘'5 Guy Const art. 160. 366 Cap 1:03 s.l IB (5> (6 ). 157 1,8 139

2-035

114

CONSTITUTIONAL STUCTURES OF GOVERNMENT

national top-up list. Accordingly, if a party chose not to contest in a geograph­ ical constituency, it cannot receive any votes from electors in that geographi­ cal constituency that would count towards its level of national support. The election of the President is done simultaneously with and as part and parcel of the election of members to the National Assembly. Each party’s national list must identify a particular individual as that party’s presidential candidate. The votes recorded in favour of a particular list are attributed to the presi­ dential candidate on that list. Every candidate for election to the National Assembly must be on the list of a political party or must identify with one such list. There is no room for independent candidates. Interestingly, the African Court on Human and People’s Rights has recently declared that an analogous provision in the Tanzanian Constitution is incompatible with art. 13(1) of the African Charter on Human and People’s Rights which guarantees to every citizen the right to participate freely in the government of his or her country .367 The presidential candidate with a plurality of votes—that is, who receives the largest number—is declared the President. It is theoretically possible in a three-party contest, for example, for the President to be elected with as few as 34 per cent of the popular vote. The Constitution thus leaves room for President to be elected by a minority of the population and for and his or her party to constitute a minority in the National Assembly.368 This was the case following the elections held in November 2011 when the presiden­ tial candidate of the People’s Progressive Party/Civic won the presidential vote. Somewhat paradoxically, the person appointed as the Leader of the Opposition appeared to command the support of the majority of members of the National Assembly. In cases like this it is open to the majority in the National Assembly to move a vote of no confidence in the government.369 (c) Executive presidency -036

Executive authority in Guyana is vested in an elected President.370 He or she is “Head of State, the supreme executive authority, and Commander-inCliief of the armed forces of the Republic” .371 When the political party of the President constitutes the majority in the Parliament, there is “[n]o higher concentration of political power . .. granted to a sole author­ ity in the landscape of contemporary democracies, including those adopt­ ing the parliamentary model” than that accorded to the President who is both a Head of State and Head of Government.372 The strong executive presidency established by the 1980 167 See Mtikila v Tanzania Unreported June 14,2013 (African Court on Human Rights and People’s Rights). 36S This possibility and its inherent difficulties were raised in R.W. James and Harold Lutchman, Law and the Political Environment in Guyana, (Institute of Development Studies, 1984), pp.94-95. See R.W. James, “The Constitution of Guyana: A Study of its Dysfunctional Application" (2006) 35-36 Transition 30, 93 96. 309 See Guy Const art. 106(6). 370 Above, arts.91, 99. 371 Above, art.89. 372 Anthony Bradley and Cesare Pinelli, “Parliamentarianism ”, in Michel Rosenfeld and

6. HYBRID PRESIDENTIAL SYSTHM IN GUYANA

115

Constitution anchored the authoritarianism of Forbes Burnham, who was the first Prime Minister of Guyana and became the first executive President. Burnham is reported to have declared that his then ruling PNC intended to •‘assume unapologetically, its paramountcy over the government” .373 The President enjoys broad immunity from suit or criminal liability for anything done in an official capacity; an immunity that subsists both during and after the expiry of his/her term of office.374 While in office, neither criminal nor civil proceedings may be continued or brought against him or her in respect of anything done in his or her private capacity. The post-1999 reforms limit the President to two consecutive terms of office.375 The President may be removed from office before the end of a term for incapacity, misconduct or for violating the Constitution .376 Executive authority is exercised by the President either directly or through subordinate officers. These officers, who are appointed and are removable by the President, include the Prime Minister, Vice Presidents, and other ministers of government.377 They are appointed primarily from among the members of the National Assembly. The President may also appoint, from outside the National Assembly, a limited number of persons as ministers. Such appointees are entitled to be members of but may not vote in the National Assembly.378 The President, the Prime Minister, Vice Presidents and ministers constitute the Cabinet.379 The Cabinet’s function is to aid and advise the President in the general direction and control of the government and it is collectively respon­ sible for that advice to Parliament.380 The Prime Minister is the leader of government business in the National Assembly and the principal assistant of the President in the discharge of executive functions.381 An extensive range of powers are expressly conferred on the President simultaneously with the diminution of the role of the Cabinet. Under the predecessor parliamentary system, the “general direction and control of the government of Guyana” was entrusted to the Prime Minister and Cabinet.382 That function is now that of the President's while Cabinet’s role is merely to “aid and advise” him or her in carrying it out .383 For the most part the President may act in his “own deliberate judgment” ,384 and in the exercise of his or her functions, he or she is shielded by extensive immunities.385 Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (OUP, 2012), pp.650, 659. 373 Newsletter of the Embassy of the Republic of Guyana (September December 1974) quoted in Percy Hint/en and Ralph Premdas, ’‘Guyana: Coercion and Control in Political Change" (1982) 24 Journal oflnteramerican Studies and World Affairs 337, 349. Sec also R.W. James. “The Constitution of Guyana: Its Dysfunctional Application" (2006) 35 36 Transition Journal 1, 30. 174 Guy Const a rt.182(1). 3/5 Above, art.90(2). iltt Above, arts.93, 94. 377 Above, arts. 101 103. 378 Above, a rt.105. 379 Above, a rt.106(1). 3811 Above, art. 106. 381 Above, art. 100. 381 Guy Const 1966 art.35 (repealed). 383 Guy Const art. 106(2). 384 Above, art.l 11(1). 38s Above, art. 182(1).

116

ro N .s rrn in o N A i

sm c n

ir is o f u o v ir n m f n i

Ihc President acts in accordance with his or her own deliberate judg­ ment unless specifically required to act in accordance with the advice or on the recommendation of some person or authority. If the latter be the case, the President may once refer back any such advice or recommendation for reconsideration but the President is ultimately obliged to follow the advice proffered.386 The President is not a member of the National Assembly but he or she may attend and address the National Assembly at any time or alter­ natively send messages to be read to the National Assembly. 387 Bills passed by the National Assembly must be presented for assent to the President, who is required to “signify that he assents or that he withholds assent” .388 What appears to be a presidential veto is in effect a delaying power. Where the President withholds his or her assent he or she must return the bill to the Speaker within 21 days and explain his or her reasons for not assenting. The President is thereafter required to sign the bill if, after a further six months has elapsed, it is presented to him or her again upon a motion supported by at least two-thirds of all its elected members. 389 The President may prorogue or dissolve the National Assembly at any time. 390 The hallmark of responsible, parliamentary government —that of indi­ vidual and collective accountability—exists only to a minor degree since the President is not a member of Parliament and, unlike his or her counterpart in the traditional Westminster system, does not have to attend its sessions to answer questions or defend his or her decisions. That duty now falls upon the Cabinet.391 Since ultimate control resides in the executive President it is of decidedly limited value. Under these arrangements, the legislature ends up having supporting role rather than functioning as a co-equal branch of government. The resulting incongruities are manifest in several ways. Tor instance, all bills must be signed into law by the President, who is given a power to delay the process by sending the bill back to assembly for re-considcration. There has been a transfer to the executive President of prerogative powers normally exercised by a ceremonial or quasi-ceremonial Ilead of State on the instructions of a Prime Minister or in his or her own discretion in the Westminster system.392 This includes the power given to the President to prorogue or dissolve Parliament at any time.393 Given Parliament’s supervisory role over the executive, this is a potent weapon by which a President can insulate himself or herself, or his or her Cabinet, from unwanted scrutiny. In 2007, the conditions for removal of a member of Parliament were extended to include circumstances in which that member declares support for another list or. more expansively, where the representative of the list (in essence, the leader of the party) indicates in writing that the party has

■ 1S'’ Above, art.l 11. Above, art.67(1) (2). -,SK Above, art. 170(2). W) Above, art. 170(4). -w" Above. art.70(2). •,1)l Above, art. 106(2). m Bruce Hicks, '‘ The Westminster Approach to Prorogation, Dissolution and Tixed Date Elections'' (2012) Canadian Parliamentary Review 20. w Guy Const art.70.

6. HYBRID PRESIDENTIAL SYSTEM IN GUYANA

117

“lost confidence in that member”.394 It is not uncommon for constitutions to forbid “crossing the floor”, but what makes this provision exceptional is that a member may be recalled for any reason, and simply on the word of the leader that the party has lost confidence in him or her. This provision effectively annihilates any prospect of independent debate or voting in the Assembly, or indeed any public position contrary to the party line, and thus subordinates the independence of the legislature to that of the political party. The Guyana Constitution thus establishes a heavy concentration of power in an executive President, who is not responsible to Parliament and is shielded by extensive immunities. According to Rudy James, these arrangements are subversive of the rule of law and constitutionalism, which confer “power without responsibility”.395 (d) Post-2011 crises General elections in November 2011 produced a plurality of votes for the incumbent government, which therefore won the presidency and was able to form the government, but lacked a majority in the National Assembly. With executive power in the hands of one party and legislative control being wielded by an alliance of parties opposed to the President’s party, the parliamentary term following the 2011 elections was tumultuous. There have been frequent and bitter clashes between the two branches of government. The executive is unable to get the National Assembly to pass bills that reflect executive policy, and bills passed by the National Assembly have been vetoed by the President. The situation is exacerbated because the electoral system does not guarantee that the President, in whom resides the entire panoply of executive powers, has the support of the majority of the Guyanese people and, unlike the US, for example, the members of the National Assembly are not accountable to a defined group of constituents. Unsurprisingly, the court has been dragged into the arena in an effort to resolve some of these clashes. When the National Assembly, acting on the basis of one of its Standing Orders, exercised a power to reduce a particular line item of (as distinct from disapproving as a whole) the national budget presented to Parliament, the Attorney General instituted legal proceedings against the Speaker and successfully challenged the action taken by the National Assembly.396 The Chief Justice held that the act of the National Assembly was outside its constitutional remit, which was specifically that of approving or disapproving and did not include reduction or other amendment.397 Accordingly, the reduction by the Assembly was unlawful and in conflict with the principle of the separation of powers. After this decision, the majority in the National Assembly proceeded to disallow expenditure in each successive year, only to discover that the Minister of Finance had continued to authorise expenditure from the con­ solidated fund in relation to items that were disallowed. In response, one of 394 Above, art. 156(3). 395 R.W. James, “The Constitution of Guyana: A Study of its Dysfunctional Application” (2006)35 36 Transition 1,14 15. 396 See AG v Trotman Unreported July 18, 2012 (SC Guy) and also AG v Trotman (No. 2) Unreported January 19,2014 (SC Guy). 197 See discussion of this case below at paras 5-034— 5 035.

m N SIM dltoN A I

s i l t

IDRI.NOi

< , Joseph, above. 2w' Joseph, above, at [105]. 261 Sec below para.3 026. 262 See generally Sujit Choudhry (ed), Flie Migration of Constitutional Ideas (CUP, 2006). 2M See Jam Const s. 13(5) and below paras 5 007 5 009. 264 R v Selassie [2013] UKPC 29 : (2013) 83 W.I.R. 94 (PC Ber) at [19]. 765 Ian Hendry and Susan Dickson, British Overseas Territories Law (Hart Publishing. 2011), p.l 55. 2f,h Grant v R [2004] UKPC 27; (2004) 64 W.I.R. 234; [2004] 2 A.C. 550 (PC Jam). 267 See also Reyes v R [2002] UKPC 11; (2002) 60 W.I.R. 42; [2002] 2 A.C. 235 (PC Bze) at 123] [24],

160

IN 'l'H R P R K T A T IO N

The “textual alfinity” between the constitutions and the Convention268 is a. far more suitable basis for considering the jurisprudence of the European Court of Human Rights than is the claim that the ECHR became part of the permanent law in Caribbean countries before independence and indirectly binds them thereafter.264 In Minister o f Home Affairs v Fisher,270 Lord Wilberforce drew a nor­ mative conclusion from the antecedents of Caribbean constitutional bill of rights very broadly. lie said that they implied the applicability of a generous approach to interpretation. He said of the Bermuda Constitution: “It can be seen that this instrument has certain special characteristics. 1. It is, particularly in Chapter I, drafted in a broad and ample style which lays down principles of width and generality. 2. Chapter I is headed ‘Protection of Fundamental Rights and Freedoms of the Individual.’ It is known that this chapter, as similar portions of other constitutional instru­ ments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the Constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). That Convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda. It was in turn influenced by the United Nations’ Universal Declaration of Human Rights of 1948. These antecedents, and the form of Chapter I itself, call for a generous interpre­ tation avoiding what has been called ‘the austerity of tabulated legalism,’ suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.”271 Beyond this general influential remark, Lord Wilberforce used international human instruments in arriving at his conclusion that the word “child” in s. 11(5) of the Constitution dealing with freedom of movement should not be interpreted to mean a child born to a marriage as had been accepted at common law and under many UK statutes at the time. Lord Wilberforce pointed to the ECHR which recognises the right to respect for family life, even though the Bermuda Constitution does not. Lie also speculated that the Bermuda Constitution was drafted after and likely influenced by the Declaration on the Rights of the Child,272 which said a child had a right to grow up in the care of his or her parents, and the ICCPR, which guaranteed protection to children against discrimination on the basis of birth status. On reflection, these speculative aspects of Fisher and the loosely drawn con­ nection between the constitution and international instruments were overly 268 See e.g. R v Robinson (2009) 74 W.I.R. 242 (CA Her) at [18]; Richardson v Raynor (2011) 78 W.I.R. 159 (SC Ber) at [83]; Fuller v AG [2011] UKPC 23; (2011) 79 W.I.R. 173 (PC B/e) at [7]; Belize Bank Ltd v AG [2011] UKPC 36, (2011) 80 W.I.R. 97 (PC Bzc) at [96]. :6y David Berry, “The Use of International Law by Domestic Tribunals in the Caribbean in Death Penalty Cases” in David Berry and Tracy Robinson (eds). Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing, 2013). pp. 103, 114. 270 Minister o f Home Affairs v Fislier (1979) 44 W.I.R. 107 at 113; [1980] A.C. 319 (PC Ber). 271 Minister of Home Affairs v Fisher [1980] A.C. 319 (PC Ber) at 329. 272 UN General Assembly Resolution 1386 (XIV) (December 10, 1959).

4. L IB E R A L A P P R O A C H F S

161

expansive. The case docs not substantiate the conclusion that these interna­ tional instruments and their protections for family life and the rights of the child were in fact antecedents of the Bermuda Constitution. These interna­ tional instruments functioned more as a form of collective wisdom which the courts should have regard to, rather than direct sources for the relevant constitutional provisions. (ii) Collective wisdom In general, foreign and international law function as a form of “collective 3-025 experience and wisdom” that is relevant to the interpretation of Caribbean constitutions, especially their human rights provisions.273 The reasoning of a foreign court or international human rights body functions as an external “reflective mirror” for the Caribbean court to assess its own interpretation and understandings about what is “necessary”, “natural” and “normal”.274 It is usual to see Caribbean judges building their reasoning by looking at jurisprudence in other parts of the world alongside what has been described as “commonsense knowledge” about the Caribbean.275 This type of reliance on foreign and international human rights jurisprudence is persuasive, not binding, and is uncontroversial.276 The collective wisdom of other tribunals and courts is especially relevant to interpreting broad rights provisions in the constitutions which are universally recognised and whose scope may change over time, such as the prohibition against inhuman and degrading punishments and treatment.277 In defining the constitutional prohibition against inhuman and degrading punishments and the constitutionality of the mandatory death penalty, Saunders JA in R v Hughes278 opined that “we would be embarking upon a perilous path if we began to regard the cir­ cumstances of each territory as being so peculiar, so unique as to warrant a reluctance to take into account the standards adopted by humankind in other jurisdictions.”279 This right, in particular, he described as placing on the state a duty “to conform to certain irreducible’ standards that can be measured in degrees

’ ’ R v Hughes (2001) 60 W.I.R. 156 (CA SLU) at [214] per Saunders JA. Cited with approval in Reyes v li [2002] UKPC 11; (2002) 60 W.I.R. 42; [2002] 2 A.C. 235 (PC Bze) at [33], -7'1 Vicki Jackson, Constitutional Engagement in a Transnational Era (OUP, 2010). p. 198. ’ 7 Mindie Lazarus-Black, Legitimate Arts and Illegal Encounters: Law and Society in Antigua and Barbuda (Smithsonian Institution, 1994), pp.4- 5. V(’ David Berry, “The Use of International Law by Domestic Tribunals in the Caribbean in Death Penalty Cases’’ in David Berry and Tracy Robinson (eds), Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing, 2013). p p .103, 120 21. ’77 See above para.3 018. Pratt v AG ( 1993)43 W.I.R. 340; (1994)2 A.C. 1 (PC Jam) inter­ preted the right not to be subjected to inhuman and degrading punishment under the Jamaica Constitution, s. 17 (repealed), and marked the beginning of a trend towards strong reliance on both foreign and international law in the Caribbean constitutional interpretation. :7S R v Hughes (2001) 60 W.I.R. 156; [2002] 2 L.R.C. 531 (CA SLU). ” 9 Hughes, above, at [214].

162

IN fK R P K H T A T lO N

of universal approbation.”280 In Hobbs v R y 8] the Barbados Court of Appeal concluded that the whipping of a person by cat-o-nine tails as a judicial sentence amounted to an inhuman and degrading punishment under s. 15(1) of the Barbados Constitution. The Court of Appeal relied heavily on a Zimbabwean decision, which had itself borrowed in its reasoning from other jurisdictions, and a decision of the European Court of Human Rights.282 The Court of Appeal approved the statement in the Zimbabwe Supreme Court in S v Ncwbem that “humaneness and dignity of human beings is the hallmark of civilised laws.”284 Williams CJ justified the court’s reliance on foreign and international jurisprudence by noting that the wording of s. 15(1) of the Barbados Constitution was similar to that found in the Zimbabwe Constitution and that it reflected the substance and language of ICC PR, to which Barbados had acceded, and art.5.2 of the American Convention on Human Rights, which Barbados also ratified. Reliance on international and foreign jurisprudence serves as a founda­ tion for a generous interpretation of constitutional bills of rights. The reasoning and approach of foreign courts and international human rights courts and bodies consistently offer plausible alternative and evolving interpretations of guaranteed rights in constitutional texts. In Francois v AG285 an attorney against whom an ex parte protection order had been granted challenged the constitutionality of the then five-year-old St. Lucia Domestic Violence Act. Barrow J located his analysis in the growing inter­ national recognition that domestic violence was a human rights concern. He rejected the “tendency to treat violence against women as a private matter”286 and disrupted the orthodoxy that constitutional rights were negative liberties and did not give rise to positive obligations on the part of the state. He insisted that the constitutional right to “life, liberty, security of the person, equality before the law and the protection of the law”287 gave rise to a constitutional duty on the part of the state to protect everyone in St. Lucia against domestic violence through legislation and otherwise. This conclusion drew heavily from the South Africa Constitutional Court’s decision in State v Baloyi288 and indirectly on the due diligence principle in international human rights law—that the state has a positive duty to take reasonable steps to prevent private actors from violating the human rights of its citizens. It is not enough that state actors do not violate these rights. The state must do everything it can to ensure that private citizens do not violate the rights of others.289

2«° Hughes, above. 281 Ilobbs R (1992) 46 W.I.R. 42 (CA Bds). 282 Tyrer v (7/7(1978) 2 EHRR 1 (ECtHR); S v Nathe 1988 (2) SA 702 (SC Zim). 783 S v Ncube, above. 784 Hobbs R (1992) 46 W.I.R. 42 (CA Bds) at 50. 285 Francois v AG LC 2001 EIC 16 (CARILAW) May 24,2001 (HC SLU). 286 Francois, above, at 6. 287 SLU Const s. 1(a). 788 State v Baloyi [1999] ZACC 19; 2000 (1) BCLR 86; 2000 (2) SA 425 (CC SA). 289 yeldsqitez Rodriguez v Honduras, Inter-Amcrican Court of Human Rights Series C No. 4 (29 July 1988) at [174].

4. IIB H R A L A PPR O A C 'H FS

163

(iii) Unincorporated treaties Anglophone Caribbean countries are said to be dualist ones in which 3-026 international obligations and treaties are undertaken by the executive. To become part of the domestic legal system these obligations must be incor­ porated into domestic law by Parliament.290 If the international obliga­ tion undertaken by the state conflicts with the constitution, the courts are required to follow the constitution as the supreme law.291 This oft-repeated rule has left sizeable room for the indirect application of international trea­ ties in constitutional interpretation. It is well established that Caribbean constitutions, and indeed any other law, should, so far as possible, be con­ strued so as to avoid creating a breach of the State’s international obliga­ tions.292 If there is ambiguity in the meaning of the constitution, courts must choose the meaning that accords with the obligations imposed by treaty.293 Here ambiguity means two possible meanings, one which accords with the treaty obligation and the other does not. In Joseph,294 de la Bastide P and Saunders J may have set a lower threshold than this when they spoke of ambiguity or uncertainty,295 The latter is a wider concept that implies inde­ terminacy or that the meaning is not settled or clear. Many rights provisions in Caribbean constitutions have a measure of uncertainty or ambiguity; that opens the door to constitutional interpretation in light of the state’s international obligations. The shift in orientation towards international obligations in domestic law is exemplified by the attitude of de la Bastide P and Saunders J in Joseph. They accepted the orthodoxy that obligations made by a state in a ratified but unincorporated treaty cannot be directly enforced in the domestic courts. In the same breath, they refused to view the “treaty as mere ‘window-dressing’ capable of being entirely ignored on the domestic plane.”296 Wit J laid bare his frustration with the continued insistence that Anglophone Caribbean countries are dualist ones and the dissonant reality of ubiquitous reliance on unincorporated treaties. He said: ‘Tntriguingly, the courts, although never having relinquished their reverence for the doctrine that unincorporated treaties ‘cannot create rights’, gradually devised methods to escape the dire consequences of rigid orthodoxy. These methods invariably led them to accept 29,1 See AG v Joseph [2006] CCJ 3 (AJ). (2006) 69 W.I.R. 104, [2007] 4 L.R.C. 199 (CCJ Bds) at [55] per de la Bastide P and Saunders J; Boyce v R [2004] UKPC 32. (2004) 64 W.I.R. 37. [2005] 1 A.C. 400 (PC Bds) at [59], See also Desiree Bernard, “Using Human Rights Treaties to Promote the Rights of Women and Children” (Cayman Islands Human Rights Conference, Cayman Islands. September 10 14.2001). 291 Joseph, above, at [55] per de la Bastide P and Saunders J. This, however, does not negate the international obligation of the State to reform the constitution to bring it into conformity with its treaty obligations. Boyce v Barbados Judgment, Inter-American Court of Human Rights Scries C No. 169 (November 20, 2007). 292 Boyce v R [2004] UKPC 32 at [59]; (2004) 64 W.I.R. 37; [2005] 1 A.C. 400 (PC Bds). 293 AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104; [2007] 4 L.R.C. 199 (CCJ Bds) at [56] per de la Bastide P and Saunders J. 794 Joseph, above. 295 Joseph, above, at [56], [80]. 296 Joseph, above, at [107].

164

[ N i l R P R E T A T IO N

concepts that, on closer look, seem to be at variance with the official doctrine.”297 Melissa Waters describes this prevalent phenomenon in which common law courts give effect to unincorporated human rights treaties in constitutional interpretation despite their dualist traditions as “creeping monism”.298 Courts readily turn to international obligations made by the state when these “resonate” with the guarantee of rights under the constitutions299 or share a similar logic or “spirit” with the constitutional provisions.300 In Naidike v AG,m Baroness Hale observed that although the Convention on the Rights of the Child had not been incorporated into domestic law in Trinidad and Tobago, its spirit was reflected in numerous specific laws relat­ ing to children in that country, including the constitutional protection of family life. Courts generally stop short of prescribing that they must choose a meaning that accords with the treaty obligation; they straddle a “grey zone” in which the treaty obligation is not binding but highly persuasive.302 The starting point in constitutional adjudication is gradually more a presumption of compatibility rather than a decisive initial finding of ambiguity or uncer­ tainty in the constitution.303 If there is no apparent inconsistency between the constitution and international legal obligations, courts show strong will­ ingness to pay close regard to the latter. Examples of this abound. Conteh CJ in Cal v ,4G304 noted the dualist principles, then went on to cite multiple sources of Belize’s international obligations towards indigenous peoples and made it plain that these international obligations “weighed heavily” on him in interpreting the constitutional rights to property, life, security of the person, protection of the law and non-discrimination.305 Endorsing Conteh CJ’s approach, Morrison JA in AG v Maya Leaders Alliancem said that it was correct to have regard both to general principles of international law as well as Belize’s international law obligations in determining what is the proper approach to establishing indigenous title.307 In an appeal against con­ viction for a sexual offence committed on girl in Gooderidge v R,m and the assertion by the appellant of his constitutional right to “a fair hearing within a reasonable time”,309 Byron CJ considered obligations undertaken by St. Vincent and the Grenadines under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to address violence 297 Joseph, above, at [32] per Wit J. 298 Melissa Waters. “Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties” (2007) 107 Colum LRev 628. 299 Cal r AG (2007) 71 W.I.R. 110 (SC B/e) at [118], 300 Naidike v zl G [2004] UKPC 49; (2004) 65 W.I.R. 372. 301 Naidike, above. 302 Melissa Waters, “Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties” (2007) 107 Colum LRev 628,634. 303 Beverley McLachlin, ’’Unwritten Constitutional Principles: What is Going On?” (2005 Lord Cooke Lectured New Zealand, December 1, 2005), at 19. 3,34 Cal v AG (2007) 71 W .I.R. 110. 3U5 Cal, above, at [126]. 306 AG v Maya Leaders Alliance Unreported July 25, 2013 (CA Bzc) at [303]. 3117 Mava Leaders Alliance, above, at [276]. 308 Gooderidge v R VC 1998 CA 9 (CARILAW) January 12. 1998 (CA SVG). 309 SVG Const s.8(l).

4. L IB E R A L A P P R O A C H E S

165

against women and the need to prosecute cases of violence against women

and girls. We have considered cases in the “grey zone” where the unincorporated international obligations had strong persuasive effect in interpreting constitu­ tional bills of rights. Most academic interest has been directed to the dramatic but small group of death penalty cases in which both the Privy Council and CCJ have given in essence legal effect to unincorporated treaties through the constitutions.,,n In Thomas v Baptiste,3,1 the appellants were men on death row who had been read death warrants before their petitions before the InterAmerican Commission on Human Rights had been determined. The Privy Council interpreted the right to due process very broadly to include a “general right accorded to all litigants not to have the outcome of any pending appellate or other legal process pre-empted by executive action.”312 The Privy Council reasoned that the government made access to the InterAmerican Human Rights System part of the domestic criminal justice system when it ratified the American Convention on Human Rights, albeit never incorporating the treaty into the domestic law.313 By another route, the CCJ came to a comparable result. In Joseph314 it held that the men on death row had a legitimate expectation that they would have access to the InterAmerican Human Rights System as provided for under the ratified and unincorporated American Convention. This legitimate expectation was rec­ ognised as a part of an expansive right to the protection of the law guaranteed by the Barbados Constitution. Ratification was not enough to give rise to the legitimate expectation. The executive had made statements that it would abide by the treaty and there was state practice consistent with the under­ standing that the state would wait for the outcomes of the Inter-American system before taking executive action. In this remarkable line of cases, the two highest appellate courts for the Caribbean, using different approaches, have integrated international legal processes into constitutional due process guarantees. These processes are less central now that the mandatory death 110 See especially Thomas v Baptiste (1998) 54 W.I.R. 387, [2000] 2 A.C. 1 (PC TT); I.cwis v AG (2000) 57 W.I.R. 275, [2001] 2 A.C. 50 (PC Jam); AG v Joseph [2006] CCJ 3 (AJ), (2006) 69 W.I.R. 104. [2007] 4 L.R.C. 199 (CCJ Bds). 111 / tunnas v Baptiste, above. ,p Thomas v Baptiste (1998) 54 W.I.R. 387 at 422; [2000] 2 A.C. 1 (PC TT) at 23. 11' See also Lewis v AG (2000) 57 W.I.R. 275; [2001] 2 A.C. 50 (PC Jam). 314 AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104; [2007] 4 L.R.C. 199 (CCJ Bds). See Derek O’Brien, ‘“ Attorney General (Barbados) v Joseph and Boyce': the Caribbean Court of Justice answers its critics?" (2007) 2 PL 189; David Berry, “The Use of International Law by Domestic Tribunals in the Caribbean in Death Penalty Cases” in David Berry and Tracy Robinson (eds), Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing, 2013), p .103; Eddy Ventosc, "Legitimate Expectations, International Treaties and the Caribbean Court of Justice” in David Berry and Tracy Robinson (eds), Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence oJ National and International Law (Caribbean Law Publishing, 2013). p. 128; Patrick Robinson, “Achieving ’The Admittedly Desirable Result’: Difficulties in Constructing Bridges to the Unincorporated Treaty” (2012) WILJ (Special Commemorative Issue on Public Law celebrating Jamaica’s 50"’ Jubilee) 5; Alicia Elias-Roberts, “A comparative analysis of the UK and Commonwealth Caribbean approach towards legitimate expectation” (2013) 39 CLB 143.

iN 1 liR P R I- 1A I ION

penalty has been abolished in all the independent states except Barbados and Trinidad and Tobago, and far fewer persons are sentenced to death in the Caribbean. The criticism that these courts have “found in the ancient concept of due process of law a philosopher s stone undetected by generations of judges which can convert the base metal of executive action into the gold of legislative power”,11-' may haunt these cases for some time to come, but they arc part of an incon­ trovertible leaning towards international law in the interpretation of the Iundamental rights provisions of Caribbean constitutions. (iv) (hiyami Constitution 3 027

Guyana has taken the furthest step forward in the Anglophone Caribbean in recognising international law in the framework of a constitution, ft has done so by directly incorporating into the Constitution key human rights treaties and by making international law relevant to the interpretation of all fundamental rights in the Constitution.316 In Thomas v HG\317 one of the first cases to examine the these constitutional changes, the new constitutional pro­ visions were said to place courts under a duty “to incorporate international human rights law into the domestic law of Guyana when interpreting the rights provisions of the Constitution.”318 George J distinguished the Guyana situation from others in which international law only had persuasive applica­ tion. Thomas was an appalling case of the unlawful detention and torture of a 14-year-old boy by the police in violation of the Guyana Constitution. The child was arrested on October 27, 2009 in relation to the investigation of a murder. lie was denied access to his parents and kept in a dark and smelly cell. He did not receive regular meals. He recounted multiple incidents in which he was severely beaten by the police to force a confession. With his hands bound, police officers poured alcohol on his genitals and set them on fire causing bad burns. He did not receive immediate medical attention and when he did, he was prescribed pain medication and a cream by someone who attended to him with a bag tied around his head. Ilis mother and an attorney eventually saw him on October 31 and insisted that he be transferred to hospital where he stayed for 14 days. George J had regard to many different sources of international human rights law. She considered the Convention of the Rights of the Child, the International Covenant on Civil and Political Rights and the Convention against Torture and other Inhuman or Degrading Treatment or Punishment, all of which were directly incorporated into the Constitution under art. 154A of the Constitution. Article 39(4) requires the court to have due regard to international law, international treaties and charters on human rights in interpreting the fundamental rights protected by the Guyang Constitution. George J recognised that this gave the court the power to examine “a wide spectrum of human rights learning”, beyond the 115 Lewis v A(i (2000) 57 W.I.R. 275 at 307; [2001] 2 A.C. 50 (PC Jam) at X8. See below paru.9 012. 117 I'lwnias i’ A (J Uureported June 11, 2011 (SC Guy). 'Humus, above, at 12.

4 . 1.IH F R A I. A P P R O A C H E S

167

incorporated conventions, including the decisions and recommendations of human rights bodies.319 (e) Unwritten constitutional principles Judges are relying increasingly on unwritten constitutional principles to scrutinise laws and state actions.320 These principles are derived “from the structures and relationships created by the constitution”.321 The seminal case of Hinds v R pedigreed such implications when it held that the separation of powers doctrine is a core constitutional value and justiciable constitutional norm; it is less clear precisely what the doctrine today means as Hinds is subject to a growing list of provisos and undercut by later cases.322 The first monumental implication of constitutional principles or jurisdiction preceded Hinds. It was the general power of judicial review of legislation in the older Caribbean constitutions. The constitutions in older independent Caribbean countries Jamaica, Trinidad and Tobago, Guyana, Barbados and the Bahamas-unequivocally provide for judicial review in respect of breaches of fundamental rights, but say nothing about access to the superior courts to challenge compliance with non-bill of rights provisions in the constitu­ tions. An expansive judicial review in respect of non-bill of rights matters was implied primarily from the supreme law clause, the written nature of the constitutions, the textual restrictions on the authority of parliaments and the doctrines of separation of powers and the rule of law.323 Although implied, many today treat this power of judicial review as one virtually written into the texts of all Caribbean constitutions, blurring the distinction between written and unwritten norms.324 In Suratt v AGV-5 Baroness Hale arguably extended the list of implied constitutional principles when she assumed that there was a constitutional requirement that the protection enjoyed by a tribunal or court must be sufficient to alford it the necessary degree of independence of the leg­ islature and executive. Hitherto, the contours of judicial independence had been parsed out in relation to courts and judicial officers specifically mentioned in the constitutions, namely superior court judges and, to some 114 Thomas. above, at 14. v" See generally, Arif Bulkan. "The 1.imits of Constitution (Re)-making in the Commonwealth Caribbean: Towards the “Perfect Nation’" (2013) 2 Can J Hum Rts 81: A d vJoseph [2006] CCJ 3 (A.l). (2006) 60 WIR 104 (CCJ Bds). See Tracy Robinson, “Our Inherent Constitution" in David Berry and Tracy Robinson (eds). Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing 2013), p.248. Pl Charles Black, Jr. Structure and Relationship in Constitutional Law (Louisiana State University Press, 1969), p.7. llimls v R (1975) 24 W.I R. 326. [1977] A.C. 195 (PC Jam); AG v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104 (CCJ Bds). See Tracy Robinson, “Our Inherent Constitution" in David Berry and Tracy Robinson (eds). Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing 2013). p.248. Sec also below paras 7 034 7 036. w See below para.5 004. ”4 . IG v Joseph [2006] CCJ 3 (AJ). (2006) 69 WIR 104 (CCJ Bds). See Tracy Robinson. “Our Inherent Constitution" in David Berry and Tracy Robinson (eds). Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence o f National and International Law (Caribbean Law Publishing 2013), p.248. 125 Suratt v A d [2007] UKPC 55; (2007) 71 W.I.R. 391; [2008] 1 A.C. 655 (PC TT).

3-028

168

IN 1'HRFRL l A H O N

degree, magistrates.326 It had not been applied to newly-created tribunals exercising judicial powers. There is also a signal that the rule of law may be emerging as another implied constitutional norm. In AG v Joseph, 127 the CCJ held that capital defendants have a legitimate expectation that their petitions before international human rights tribunals would be dealt with before carrying out the death sentence. The joint decision of de la Bastide P and Saunders J justified this entitlement with reference to the ‘‘inherent jurisdiction” of the superior courts to grant constitutional relief to give full effect to the “protection of the law”. This right was not exhausted by the specific provisions outlined in the bill of rights dealing with the right to the “protection of the law”. By regarding principles associated with the rule of law —protection of the law or due process—as “inherent” to the constitution and having force that is independent of specific constitu­ tional provisions, Joseph hints at the rule of law as part of the “inherent” constitution.328 5. Judicial Restraint .1 029

Judges exercise restraint in performing their constitutional function of judi­ cial review on constitutional grounds in a variety of ways. A coherent doc­ trine of judicial restraint has not developed yet in Caribbean constitutional law though patterns of restraint can be identified. These practices can be loosely associated with the separation of powers doctrine which contemplates that each organ of government has the powers it needs to properly carry out its functions and that it will not face undue interference in the performance of its core functions.329 The most plausible way of explaining the very different forms of restraint exercised is that judges have placed limits on their judicial review functions because they regard their scrutiny as encroaching on the proper sphere of another organ of government or even a sector within their own branch of government. (a) The early deference of the Privy Council

3-030

A strong policy of deference pervaded the early work of the Judicial Committee of the Privy Council as a postcolonial constitutional court in the Caribbean.330 During the 1970s and 1980s the Privy Council exercised substantial intra-branch restraint, deferring to the local legal system, and especially judgments made by national judges, on the appropriate balance between a constitutionally protected right and the public interest.331 Local 12(1 See below Ch.8. 322 AG v Joseph [7006] CCJ 3 (AJ); (2006) 69 W.I.R. 104 (CCJ Bds). 328 Scq below para.6 028. 32y See below para.7 005. 330 See K.D. Ewing, "A Bill of Rights: I.cssons from the Privy Council" in W. Linme. C. llimsworth and N. Walker (eds), Edinburgh Essays in Public Law (Edinburgh University Press, 1991). p.231. 331 See AG v Antigua Times (1975) 21 W .I.R. 560. [1976] A.C. 16 (PC A&B); Hinds v R (1975) 24 W.I.R. 326, [1977] A.C. 195 (PC Jam); Baker v R (1975) 23 W.I.R. 463, [1975] A.C. 774 (PC Jam); Bell v DPP (1985) 32 W .I.R. 317, [1985] A.C. 937 (PC Jam).

5. J U D IC IA L R E S T R A IN !'

169

judges were said to be more familiar with local conditions and significant weight should be given to their findings.332 In addition, the Privy Council expressed great reluctance to rule on issues which were not raised in the Jamaican courts and on which they did not have the benefit of the opinion of the local courts.333 For example, in Bell v DPPm the Privy Council declared that local Court of Appeal judges were best placed to undertake the “deli­ cate balancing” of the right of an accused to a fair trial within a reasonable time and the interest of the public in having the accused tried, because they had extensive knowledge and experience of local conditions.335 The Privy Council expressed reluctance to reverse those judgments and also deferred entirely to the legislature and those involved in the administration of justice on the question of how best to address the chronic delays that beset the administration of justice. The Privy Council deemed the latter to be matters of policy and the proper sphere of the legislature and executive under the separation of powers doctrine.336 The distance of the Privy Council from the workings of Caribbean societies and polities reinforced the separation of powers argument about the proper function of the courts as well as the narrower point about the proper role of an appellate court. In Berry v i?,337 Lord Lowry echoed similar sentiments to those in Bell when he said that “in a civilised community the most suitable ways of achieving fairness (to the accused) are best left to, and devised by the legislature, the executive and the judiciary which serve that community and are familiar with those problems.”338 The policy of deference resulted in minimal judicial review and very limited judicial protection of constitutional rights and freedoms.339 Pratt v AG340 represents a turning point for the work of the Privy Council as it became a more activist court on death penalty cases. While maintaining some concerns about its suitability to decide certain questions,341 it abandoned its hesitancy to overrule the decisions of local institutions. The review jurisdiction exer­ cised by the same judges in the House of Lords under the UK Human Rights Act after 1998 and the influence of the European Court of Human Rights no doubt influenced a new approach. As the Privy Council became more active agents of judicial review, this deference waned. A decade after Bell, the 332 Paul v State Unreported July 28, 1981 (PC TT). 333 See Baker v R (1975) 23 W.I.R. 463; [1975] A.C. 774 (PC Jam). 334 Bell v DPP (1985) 32 W.I.R. 317; [1985] A.C. 937 (PC Jam). 335 Bell v DPP (1985) 32 W.I.R. 317 at 327-328; [1985] A.C. 937 (PC Jam) at 953 54.See also Paul v State Unreported July 28, 1981 (PC TT); Mungroo v R [1991] 1 W.L.R. 1351 (PC Maur) at 1355. 33b See Baker v R (1975) 23 W.I.R. 463; [1975] A.C. 774 (PC Jam). 337 Berry v R (1992) 41 W.I.R. 244; [1992] 2 A.C. 364 (PC Jam). 338 Berry v R (1992) 41 W.I.R. 244 at 253; [1992] 2 A.C. 364 (PC Jam) at 376. 339 See Margaret Demerieux, "‘The Common Law and the Litigation before the Privy Council” in David Berry and Tracy Robinson (eds), Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence o f National and International Law (Caribbean Law Publishing, 2013), p.248. 340 Pratt v AG (1993) 43 W.I.R. 340; [1994] 2 A.C. 1 (PC Jam). 341 COP v Bermuda Broadcasting Co [2008] UKPC 5, (2008) 72 W.I.R. 125, [2008] 4 L.R.C. 537 (PC Ber) at [12] [13]; Gleaner Co Ltd v Abraham [2003] UKPC 55, (2003) 63 W.I.R. 197, [2004] 1 A.C. 628 (PC Jam) at [66] [72],

170

LN I I K P R It A l'IO N

Privy Council took a more expansive approach in assessing whether delays in carrying out the death penalty amounted to inhuman and degrading punish­ ment. In Pratt v AG,M2 it accepted that the government faced challenges in administering justice with limited resources, but insisted that if it wanted to maintain capital punishment, it had to improve the administration of justice to do so quickly after sentencing. The challenges facing the justice system could not be used to rationalise long delays.343 There has been an occasional use of the doctrine of margin of appreciation to explain the Privy Council’s relationship with national systems and that it will defer to national courts, who better understand the local context, in balancing rights and the public interest.344 In this instance, the terminology “margin of appreciation” as derived from European Court of Human Rights, is best avoided. The basis for the European Court’s deference is its status as an international court. The primary mechanism for protecting human rights in Europe is domestic law and institutions and the European Court plays a subsidiary role. Domestic remedies must be exhausted before litigants can resort to the European Court. This is distinguishable from the role of the Privy Council or the CCJ functioning as final courts of appeal on domestic law. The Privy Council is an anachronistic final court of appeal because it is comprised of judicial officers who have no relationship with the domestic jurisdictions. That raises institutional considerations that should be relevant to the Privy Council in its decision making. But the terminology margin of appreciation addresses a quite different scenario. (b) The presumption of constitutionality 3-031

The presumption of constitutionality345 is a form of judicial restraint or defer­ ence exercised by superior courts in reviewing legislation. It is self-imposed340 because the ordinary function of judges is to interpret and apply laws, not to question them.347 Judicial review of legislation is a “serious and responsible” duty arising from the guardianship of the fundamental law.34s Still it is an extraordinary remedy since it permits challenges to laws produced through the democratic process.349The judiciary should be slow to interfere with laws properly enacted by parliaments. It demonstrates this by making “an initial presumption that Parliament did not intend to pass beyond constitutional bounds.”350 The presumption of constitutionality has two very different implications in Caribbean constitutional law as a burden of proof and as a canon of construe 342 Pratt v /I(7(1993) 43 W.I.R. 340 at 361; [1994] 2 A.C. 1 (PC Jam) at 34. 343 Guerra v Baptiste (1995) 47 W.I.R. 439 at 451; [1995] 4 All E.R. 583 (PC TT) at 592 93. 344 See Gleaner Co Ltd v Abraham [2003] UKPC 55; (2003) 63 W.I.R. 197; [2004] I A.C. 628 (PC Jam) at [66] [72], 345 See Tracy Robinson, “ The Presumption of Constitutionality’- (2012) 37 WILJ 1. 346 Basu, Basil's Commentary on the Constitution of India, 5th edn (1965), Vol 1. cited in A (> v Mohamed Alii (1987) 41 W.I.R.'. 176 (CA Guy) at 189. 347 Bahamas Methodist Church v Symonette (2000) 59 W.I.R. 1 [2000] 5 L.R.C. 196 (PC Bah). 34H British Imperial Oil Co Ltd v Federal Commissioner of luxation (1926 27) 38 C.L.R. 157 (HC Aus) at 180. 34l> Peter llogg. Constitutional Law of Canada. 5th edn (Thomson Carswell. 2007), pp. 15 23. 3,0 British Imperial Oil Co Ltd v Federal Commissioner o f Taxation (1926 27) 38 CL.R 153 (HC Aus) at 180.

5. JUDICIAL RESTRAINT

171

|

tion. These two consequences of the presumption of constitutionality—moti­ vated by the same logic of showing strong respect for the democratic law-making process—take us in very divergent directions. As a burden of proof it is a form of restraint that can severely circumscribe judicial review. The application of the second understanding of the presumption, as a canon of construction, can involve very heavy judicial intervention through a “flexible and generous inter­ pretation” of laws.351 It allows judges to modify the language of an ambiguous statute to secure the interpretation which is consistent with the constitution. (i) Burden o f proof Since there is a presumption in favour of the constitutionality of an impugned law, the burden rests with the applicant to show a “clear transgression of constitutional principles”.352 Lloyd Barnett explains that:

3-032

“The onus of proving that the elected representatives of the people have acted in contravention of constitutional principles has therefore been cast on the person making the allegation.”353 Invariably this involves some form of “factual deference” to Parliament; this means that the facts that are required to meet the constitutional test to determine whether the legislation is valid are assumed to exist once there is a rational basis for this.354 There is a crucial caveat to the burden. Once the applicant establishes that the law in question prima facie infringes a guaranteed fundamental right, the applicant is deemed to have met the burden of establishing a clear transgres­ sion of constitutional principles.355 The burden then shifts to the respondent to establish that the limit on the right can be constitutionally justified. This is because the courts have a duty to interpret the fundamental rights guaranteed by the constitutions generously to give full effect to the rights.356 In many cases a prima facie breach is evident on the face of the case. Where there are factual disputes about the breach or legal ones about the meaning and scope of the constitutional right, the burden on the applicant to establish a prima facie case is more imposing. As early as 1964, the Supreme Court of Guyana in Lilleyman v IRC accepted the application of the presumption of constitutionality and adopted the position that “if any law prima facie appears to hit any of the fundamental rights spe­ cifically guaranteed by the Constitution, the burden shifts to the State to establish that it is constitutionally justifiable.”357 351 A G v Mohamed Alii (1987) 41 W.I.R. 176 (CA Guy) at 189. 352 Mohamad Alii, above, at 189. Sec also King v AG (1992) 44 W.I.R. 52 (HC Bds) at 67. 351 Lloyd Barnett, The Constitutional Law of Jamaica (OUP, 1977), p.350. 354 F. Andrew Hessick, “Rethinking the Presumption of Constitutionality” (2010) 85 Notre Dame L Rev 1447, 1455. 3i5 See below para.9 022. 356 Minister of Home Affairs v Fisher (1979) 44 W.I.R. 107 at 113; [1980] A.C. 319 (PC Ber) at 328. 357 IRC v Lilleyman (1964) 13 W.I.R. 224 (SC BG) at 232. Upheld in IRC v Lilleyman (1964)

t

171

I N I I KPRI I A 1 I O N

iii Iniigua rime's i n d Hinds. the Privy C o u n c i l a d o p t e d a Lu m o r e r strictiv, losl. li the law o n t h e face o f it infringed a f u n d a m e n t a l right, it was presume, t h a t the re w a s g o o d r e a s o n to limit the right, th u s plac ing t h e o n e r o u s burdei o f es ta b l is h in g t h a t th e res triction o n the right was not justified o n the applj cant. Bernice L a k e c h a r a c te r i s e d this excessive d efe ren ce to the legislature ii d e t e r m i n i n g the m e a n i n g a n d sc op e o f f u n d a m e n t a l rights as an ' in a p t a p p l i c a t i o n o f the r ig o ur s o f the p r e s u m p t i o n o f c o n s l i t u l i o n a l i n w hic h so readi ly p res en ts itself in the ben ig n e n v i r o n m e n t o f the s up r em ac ' o f parliament".

3 033

I he t w o - p a r t test in Lilleyman w a s vi n di cat ed by a series o f l a n d m a r k case f r o m the P a s t e r n C a r i b b e a n in th e 1990s, a p e r io d w he n the Privy Co u nc i b eg an to a b a n d o n its excessive judicial defer enc e a n d to sticss the need Id the c o u r t s to m a i n t a i n “ a firm p e r f o r m a n c e o f their p r o p e r co n s ii tu ii o n a i ol e” in assessing limits o n f u n d a m e n t a l rights.359 L a k e n o te d tha t it tool ne arl y 30 years to "e xo rc ise the g h o s t s ” o f Antigua Times**' S he s p o k e to< s oon . R e g r e t ta b l y , th e a u t h o r i t a t i v e h a s t e r n C a r i b b e a n eases o n the burdei o f p r o o f in bills o f rights m a t t e r s did n o t directly c o n f r o n t a n d jettison th b a d l y de ci de d as p e c t s o f Antigua limes a n d Hinds. T h e s e h a v e crep t b a d int o C a r i b b e a n j u r i s p r u d e n c e a n d c o n t i n u e to h a u n t C a r i b b e a n co n sti tu ti onal law' t o d a y . ' 61 (Irani r a bill o f rights ease, has g e n e r a te d u n n e c e s s a r y confusio: a b o u t th e s ta te o f th e law in the C a r i b b e a n with its reference to the p r e s u m p lion o f c o n s t i t u t i o n a l i t y as i m p o s i n g a " h e a v y ” b u r d e n o n the a p p l i c a n t L p r o v e invalidity o f th e law, ec ho es o f Antigua Times. Grant relied on th 1979 Privy C o u n c i l case o f Mootoo v A G .M13 which h a d a p p l i e d the Amiga Times test. In Grant , th e Pr ivy C o u n c i l failed to cite its o w n a u l h o r i t a t i v s t a t e m e n t s in th e h a s t e r n C a r i b b e a n cases o f Marpin a n d Benjamin on th t w o - p a r t b u r d e n o f p r o o f in rights litigation a n d in d e e d n o t h i n g t u r n e d in th ease o n the b u r d e n o f pro of. L o r d B i n g h a m a p p e a r e d to h a v e e o n Hated th q u e s t i o n o f t h e b u r d e n o f p r o o f in th e case with a q u it e diU'erenl a n d far m o r general one: t h a t this was a difficult ease for th e a p p l i c a n t to win. A l t h o u g there was a pritna facie b r e a c h o f the right in qu e s ti o n p r o t e c t i o n o f th

7 W . I . R . 4 9 6 (C'A l !(i). Ci t e d bv Lewi s CJ ( A g ) in J O v d iiityiia tim es ( 1 9 7 4 ) 20 W . I . R . 5/ (CAW IAS). •, 'x He m i e c L a k e Q C , " Priori Ii / m g S n c i o - Let m u m i e l s s u e s a u d C o n s t i t u t i o n a l Oe mocrati / . ati o m the C a r ib b e a n" ( O p e n i n g A d d r e s s to the I AVI Op e n C a m p u s A n t i g u a a nd Ilarbue C o n f e r e n c e . 7004). av a i l ab l e at /////?.// h !imi. cj/ w /.//ii’/.t-c/zz/.v/rt.v/rA ( cnce/papcrs/lake.hlml [ A c c e s s e d 1 eb ru a ry 2 5 . 201 sj. Cable £ I I'irdess i D om inica I Ltd. r M arpin ( *,()(!C)) 57 W. l K. 14! ( P C O o m ) at 151. Si a l s o Rcnjonun r M inister o f Inform ation an d B roadcnstiny [7 (KM | I. K P C X: i J ' 0 1 ) 5S W . I . R . 17 [7001] I W. I. . K. 1040 ( P C A u g ) . Hernice 1 a k e Q C . ' P r i o r i t i / i n g S o c i o - l x o n o m i c Issues and ( o i l s t it ut ion a! O e m o e r a l i / a t i i in the C a r ib b e a n" ( O p e n i n g A d d r e s s to the U W I O p e n C a m p u s A n t i g u a and llarbut C o n f e r e n c e . 2 00 4 ) av a i l ab l e at Im pdlw w n -.optn .itw i.edit/sitt 'iUlttluultlJilestbin cdelantipiiuieonje. encclnapersllake.him ! [ A c c e s s e d b e h r u a r y 25. 2015], 1X1 .4(7 r C aterpillar A m ericas ( 2 0 0 0 ) 62 W . I . R . 155 ( ( 'A ( i u > ) at 147 IS. 174: l a a n i \ / ( | 2 0 0 I IK P C 2. ( 2 0 0 6 ) 68 W . I . R . 5 5 4 ( P C J a m) at [15], 1(’’ C ram r R [20061 U K P C 2: ( 2 0 0 6 ) 68 W . I . R . 554 ( P C lam). M ootoo v . 4 ( 7 ( 1 9 7 9 ) 50 W . I . R . 411: [1979J 1 W . L . R . 1554 ( P C 1 1 ).

5. JUDICIAL RhSfRAlNT

173

law -justification for the restriction on the right could be readily established, ['lie law being challenged permitted the admission of an unsworn statement made out of court in certain limited circumstances. It was found to be both rationally connected to legitimate state objectives and proportionate, in that the law did not seek to limit the right any more than was needed to meet that goal. Thus, when Lord Bingham spoke of the “difficult task” and “heavy” burden on the applicant, at best he was speaking loosely about that specific case which was unwinnable because of the potency of the justifications for the restrictions on the rights and their proportionality. His statement, which was obiter, offers no guidance on the application of the presumption of con­ stitutionality as an element of the burden of proof in rights adjudication.364 Lady Hale in Suratt v A G365 affirmed the statement in Grant that “constitutionality of a parliamentary enactment is presumed unless it is shown to be unconstitutional and the burden on a party seeking to prove invalidity is a heavy one.” This broad statement on the presumption of constitutionality is mostly rel­ evant to a case like Suratt that involved non-bill of rights matters. The diffi­ culty is that Suratt also involved bill of rights concerns and the Privy Council failed to distinguish the appropriate burden of proof for these matters. The challenged antidiscrimination law, the Equal Opportunities Act 2000 (EOA), provided protection against sex discrimination, but added that ‘“sex’ does not include sexual preference or orientation”.366 The Trinidad and Tobago Court of Appeal concluded unanimously that this was a constitutionally impermissible distinction to make and violated the constitutional right to equality.367 Buried deep in the Privy Council’s decision is a reversal of this ruling and a general conclusion that “there can be little doubt that the balance which Parliament struck in the EOA is justifiable and consistent with the Constitution.”368 Nothing in the judgment demonstrates why this was so obvious or indicates that the state was required to justify the restric­ tion on the right to equality. Indeed, on this very controversial question, the Privy Council deferred entirely to Parliament’s assessment, adopting the Antigua Times!Hinds style nominal judicial review on fundamental rights. Further deepening the confusion, in PSAB v Marajm the Privy Council again approved the Grant formulation, though now with an entirely different effect—as a canon of construction used to resolve ambiguities and obscurities in the statute and bring them in line with the constitution. It is to be regretted that the Eastern Caribbean cases failed to review, dis­ tinguish or repudiate the Privy Council’s restrictive analysis in Antigua Times and Hinds of the presumption of constitutionality as a severe allocation of the burden of proof in bill of rights cases. Still, it is these Eastern Caribbean cases 3M Tracy Robinson. "The Presumption of Constitutionality" (2012) 37 W I1J 1.12. Suratt v AG [2007] UKPC 55; (2007) 71 W.I.R. 391; [2008] 1 A.C. 655 (PC TT). Sec gener­ ally, Arif Bulkan. "The Poverty of Equality Jurisprudence in the Commonwealth Caribbean" (2013) 10 Equal Rights Review 11, 18. jh6 -pp Equal Opportunities Act Chap 22:03 s.3. 367 Suratt v AG Unrcported January 26, 2006 (CA TT). 3hS Suratt v AG [2007] UKPC 55; (2007) 71 W .I.R. 391; [2008] 1 A.C. 655 (PC TT) at [58], -w' PSAB v Maraj (2010) 78 W.I.R. 461 (PC TT) at [29],

174

INTERPRETATION

that lead the discordant authorities since their analysis of the burden in rights litigation is a key part of their ratio. As we have shown, Grant stands for little on the burden of proof in rights adjudication. Both that case and Suratt failed to have proper regard for the two-part test—burden on applicant to prove prima facie breach of constitutional right which shifts to the respond­ ent to justify—established a decade before in the Eastern Caribbean cases.370 Caribbean courts should return to the substantive reasoning in the Eastern Caribbean cases and abandon any reliance on the flawed Grant dictum. (ii) Canon o f construction 3-034

The second function of the presumption of constitutionality is as a canon of construction exemplified in the maxim “‘magis est ut res valeat quam percat”. TJiis means a law should be so interpreted that it is effective rather than ineffective. Where the challenged statute is open to two interpretations, one of which is constitutional and one that is not, the court should choose the interpretation that saves the validity of the law.371 In doing so, the court is permitted to imply language into the statute which would clarify the interpre­ tation that is consistent with the constitution, provided this does not produce legal uncertainty. Since it is presumed that Parliament intended to enact a law consistent with the constitution, the constitutional court is permitted to imply words into the statute where there was ambiguity or an omission if the implied words would remedy the defect. “. . . [I]t must be assumed that Parliament did not intend to violate those rights. So far as possible, therefore, the law must be interpreted so as to be consistent, rather than inconsistent, with them.”372 In Hector v AG,373 the Public Order Act 1972-—which made it an offence for any person to print or distribute any false statement likely to cause fear or alarm in or to the public or to disturb the public peace, or to undermine public confidence in the conduct of public affairs—was, on the face of it, not reasonably required for public order. The Privy Council considered whether the presumption of constitutionality could be applied to save the law by implying into the law such language that avoids a conflict with the constitu­ tion. It was not possible and the suggested implied term only highlighted the inconsistency of the law with the protection of freedom of expression in the Constitution of Antigua and Barbuda. A similar attempt to use the presump­ tion of constitutionality in cle Freitas failed because the Civil Service Act was free from ambiguity.374

3711 Tracy Robinson, ‘'The Presumption of Constitutionality” (2012) 37 WILJ 1. 171 Lloyd Barnett, The Constitutional Law o f Jamaica (OUP, 1977), p.350. 371 PSA B v Maraj [2010] UKPC 29; (2010) 78 W.I.R. 461 (PC TT) at [26], 373 Hector v A G (1990) 37 W.I.R. 216; [1990] 2 A.C. 312 (PC A&B). 374 See also Observer Publications Ltd v Matthew [2001] UKPC 11; (2001) 58 W.I.R. 188 (PC A&B).

CHAPTER 4 SUPREMACY OF THE CONSTITUTION

1. The Doctrine of Supremacy and Supreme Law Clauses

The supremacy of the constitution is the foundation of the constitutional law in the independent Anglophone Caribbean countries. Supremacy is not an apposite description of the constitutions of the overseas territories. The tran­ sition from colony to independent states in the Caribbean produced a new mode of constitutional governance with an overriding written constitution. The legislature is a creature of the constitution and is subject to it . 1 The adop­ tion of supreme constitutions in general represented the end of the subordi­ nation of local governmental institutions to imperial ones.2 Constitutional supremacy is thus a symbol of decolonisation and the historical journey to self-government and independence. The constitutions of these states declare themselves to be the “supreme law” and add that any other law that is inconsistent with the constitution is void to the extent of the inconsistency.3 Section 2 of the Antigua and Barbuda Constitution 1981, for instance, provides: “This Constitution is the supreme law of Antigua and Barbuda and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.” Supremacy clauses confer on these Caribbean constitutions the highest authority in the legal system and overriding force.4 They are “imperative” and provide very clear instructions on the implications of inconsistency with the constitutions.5 They are also “prohibitive” and constrain the actions of

1 Jurndoo v /fG(1968) 12 W.I.R. 221 (CA Guy) at 226 per Stoby C, affirmed (1971) 16 W.I.R. 141, [1971] A.C. 972 (PC Guy); overruled in Gairy v A G [2 m ] UKPC 30, (1999) 59 W.I.R. 174, [2002] 1 A.C. 167 (PC Gren). 2 The anomaly was that the independent states all initially retained the Judicial Committee of the Privy Council as a final court of appeal. All but three o f them still do even though they have, with the exception of the Bahamas, ratified the Agreement Establishing the Caribbean Court of Justice, which created an alternate final court of appeal. 3 See A&B Const s.2; Bah Const art.2; Bds Const s.l; Bze Const s.2; Dom Const s. 117; Gren Const s. 106; Guy Const art.8; Jam Const s.2; SKN Const s.2; SLU Const s. 120; SVG Const s. 101; TT Const s.2. 4 Jutta Limbach, “The Concept o f Supremacy of the Constitution” (2001) 64 M LR 1,1. 5 Collymore v AG (1967) 12 W.I.R. 5 (CA TT) at 21 per Phillips JA, affirmed (1969) 15 W.I.R. 229, [1970] A.C. 538, [1969] 2 All E.R. 1207 (PC TT).

4-001

176

SUPREMAC Y OF THE CONSTITUTION

Parliament. Laws that are inconsistent with them are void .6 In several of the constitutions the supremacy clause is specially entrenched and so not intended to be easily changed.7 Curiously, there are countries where the clause is not accorded the highest level of entrenchment in the constitution, including Trinidad and Tobago where this clause can be amended by a majority vote of the members of the Houses of Parliament.8 The Jamaica Constitution 1962, the first Caribbean independence constitution, does not explicitly declare that it is the “supreme law” but its supremacy has been readily implied from the affirmation in s.2 that laws that are inconsistent with the Jamaica Constitution are void .9 It has been judicially affirmed that s.2 “entrenches the principle of constitutional supremacy” . 10 2. Elements of Constitutional Supremacy

(a) Ordinary laws must conform with the constitution 4 002

Subject to its own provisions, the constitution has primacy over all other laws. In so far as those laws are inconsistent with the constitution, they must yield to it.11 The supremacy clauses explicitly spell out that ordinary laws or provi­ sions found in the same are void to the extent of their inconsistency with the constitution.12 Some constitutions include an additional provision reiterating supremacy that Parliament should pass no law which abrogates, abridges or infringes the guaranteed fundamental rights and freedoms. 13 This highlights that the guaranteed rights take priority over all other laws.14 In the seminal US Supreme Court case Marbury v Madison, 15 Marshall J explained that “all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and conse­ quently the theory of every such government must be that an act of the legislature, repugnant to the constitution, is void.” 16 6 Colly more, above, at 8- 9 per Wooding CJ. See also M arbury v M adison (1803) Cranch 137 (SC US) at 1,76 79. 7 Collymore, above. The clause has the highest level of entrenchment in a number of coun­ tries. See A&B Const s.47(5) (referendum); Bah Const art.54(3) (referendum); Bds Const s.49(2) (a) (two-thirds of each House of Parliament); Guy Const a rt.164(2) (referendum); Jam Const s.49(3) (referendum); SKN Const s.38(3) (referendum). 8 See Bze Const s.69(4); Dom Const s.42(2); Gren Const s.39(2), (3), (4); SLU Const s.41(3); SVG Const s.38(2); TT Const s.54(5). 9 Jam Const s.2, See also Collymore v A G (1967) 12 W.I.R. 5 (CA TT), affirmed (1969) 15 W.I.R. 229, [1970] A.C. 538 (PC TT) 10 IJC H R ( 1998) L td v M arshall-Burnett Unreportcd July 12, 2004 (CA Jam) at 32 per Smith JA, reversed [2005] UKPC 3; (2005) 65 W.I.R. 268; [2005] 2 W.L.R. 923; [2005] 2 L.R.C. 840 (PC Jam). 11 Gairy v A G [2001] UKPC 30; (1999) 59 W.I.R. 174; [2002] 1 A.C. 167 (PC Gren) at [19]. 12 A&B Const s.2; Bah Const art.2; Bds Const s.l; Bze Const s.2; Dom Const s.l 17; Gren Const s. 106; Guy Const art.8; Jam Const s.2; SKN Const s.2; SLU Const s. 120; SVG Const s. 101; TT Const s.2. 13 A&B Const s. 18; Jam Const s.l3(2)(b); TT Const s.5(l). 14 B oyce v R [2004] UKPC 32; (2004) 64 W .I.R. 37; [2005] 1 A.C. 400 (PC Bds) at [15]. 15 M arbury v M adison (1803) Cranch 137 (SC US). 16 M arbury, above, at 177.

2. El F.MF.NTS OF CONSTITUTIONAL SUPREMACY

177

IRC v Lilleyman17 is one of the earliest Caribbean cases to undertake judicial review of a statute for consistency with the constitution. Cummings j gave emphasis to the written nature of the British Guiana Constitution. He described it as providing “the organic or fundamental law with reference to which the validity of laws enacted by the legislature are to be tested.” 18 He added that “[a] law enacted by the legislature cannot transgress or violate the provisions of the fundamental law.” 19 The constitutions themselves provide for a rather different regime in relation to laws that preceded the constitu­ tion. As a general rule, these laws are not declared void if inconsistent with the constitution. Such existing laws are construed with such adaptations and modifications as may be necessary to bring them into conformity with the constitution. The other savings law clauses found in the constitutions have harsh and far-reaching results. They function as an exception to the usual consequence of supremacy, that laws which are inconsistent with the constitution are void .20 (b) Limits on governmental power The constitution is an overarching legal regime limiting the exercise of gov­ ernmental power. It is an attempt “to keep a government in order” ,21 a mech­ anism of constitutionalism. Constitutional supremacy is an authoritative statement that both ordinary laws and the administration of the government must be subordinated to the rules and principles of the constitution. The constitution does not only control what the law may provide, its functions include placing limits on what the state can do .22 In this way, and by confer­ ring on individuals new legal rights23 and establishing new remedies,24 the constitution provides a safeguard against dictatorship and arbitrary exercise of power and disregard of human rights.25 The obligation to conform to the constitution, and the amenability of state actors to enforcement proceedings for failure so to conform, extends to public authorities exercising key public functions that are not part of the central government.26

4-003

(c) Special procedures for amending the constitution The constitution is a law but one that is qualitatively different from ordinary statute law. This difference is reflected in the manner in which amendments or alterations are made to the constitutional text. Since the latter is the superior 17 !S 19 70

IR C v Lilleyman (1964) 13 W.I.R. 224 (SC BG), affirmed (1964) 7 W.I.R. 496 (CA BG). IRC, above, at 241 42. IR C above, at 242. Boyce v R [2004] UKPC 32; (2004) 64 W.I.R. 37; [2005] 1 A.C. 400 (PC Bds) at [31]. 21 Richard Kay, “American Constitutionalism” in L. Alexander (ed), Constitutionalism

(CUP, 1998). p. 16. 22 R v Hughes [2002] UKPC 12; (2002) 60 W.I.R. 156; [2002] 2 A.C. 259; [2002] 2 W.L.R. 1058 (SLU), 12 B.H.R.C. 243; [2002] 2 L.R.C. 585; [2002] All E.R. (D) 150 (Mar) ( PC SLU) at [29], 23 Thornhill v A G (1976) 31 W.I.R. 498, [1981] A.C. 61 (PC TT); A G v Whiteman (1990) 39 W.I.R. 397, [1991] 2 A.C. 240 (PC TT). 24 Maharaj v A G (1978) 30 W.I.R. 310; [1979] A.C. 385 (PC TT). 25 Jutta Limbach, “The Concept of Supremacy of the Constitution” (2001) 64 MLR 1. 4. 26 A G v Smith [2009] UKPC 50, (2009) 75 W.I.R. 457, [2010] 3 L.R.C. 63 (PC TT); Wade v Roches BZ 2005 CA 5 (CARILAW) March 9. 2005 (CA Bze).

4-004

178

SUPREMACY OF JIIH C'ONSTl'1 U1TON

law, the legislature cannot alter or change it in exactly the same fashion as it amends an ordinary law. Special procedures, described in the constitu­ tion itself, are required for the passage of legislation amending or altering a constitutional provision. These procedures, referred to as “entrenchment”, are not uniform in relation to the various provisions of the constitutions. Generally speaking, although not always, the level of entrenchment is an indication of the degree of importance attached to the constitutional value reflected in the particular provision. (d) Judicial review 4-005

A written constitution that is supreme invariably produces an expansion in the role of the judiciary. Constitutional supremacy is predicated on an insti­ tution that is empowered authoritatively to interpret the constitution, resolve conflict between the branches of government, assess the constitutionality of governmental acts and safeguard the fundamental rights of the individual prescribed by the constitutions. Judicial review is the power and duty granted to superior courts to review laws and governmental actions to determine their consistency with the constitution .27 Caribbean constitutions give jurisdiction to the High Court or Supreme Court to provide effective remedies for breaches of guaranteed fundamental rights and freedoms. The superior courts play a special role as guardians of the bills of rights.28 The rights are drafted in general and value-oriented language29 and it is the task of the judiciary to discover their content and scope through a process of application of the constitutional text to concrete circumstances.30 Moreover, it is the duty of the High/Supreme Court to declare a law passed by Parliament to be ultra vires the constitution and void if it infringes the guaranteed rights.31 In the newer constitutions, the High/ Supreme Court also has explicit jurisdiction to determine whether there has been a contravention of a non bill of rights provision in the constitu­ tions.32 Even in the absence of such a provision, it has been readily assumed that judicial review by the superior courts is an incident of constitutional supremacy.33

27 Bahamas M ethodist Church v Sym onette (2000) 59 W.I.R. 1 at 14; [2000] 5 L.R.C. 196 (PC Bah) at 208. 28 Collymore v AG (1967) 12 W.I.R. 5 (CA TT) at 9 per Wooding CJ. 29 Lech Garlicki, “Constitutional Courts versus Supreme Courts” (2007) 5 Int J Constitutional Law 44. 30 Boyce v R [2004] UKPC 32; (2004) 64 W.I.R. 37; [2005] 1 A.C. 400 (PC Bds) at [28], 31 Collymore v A G (1967) 12 W.I.R. 5 (CA TT) at 9 per Wooding CJ. 32 A&B Const s. 119; Dom Const s.103(1); Gren Const s.101; SLU Const s.105; SKN Const s.96; SVG Const s.96 33 See Collymore v A G (1969) 15 W.I.R. 229, [1970] A.C. 538 (PC TT); Hiiuls v R (1975) 24 W.I.R. 326, [1977] A.C. 195 (PC Jam) at 214; Bahamas M ethodist Church v Sym onette (2000) 59 W.I.R. 1, [2000] 5 L.R.C. 196 (PC Bah).

3. THE OVFRSFAS TERRITORIES

179

3. The Overseas Territories

From time to time, the judges of the Eastern Caribbean Supreme Court sitting in overseas territories infelicitously refer to the constitutions of the overseas territories in the Caribbean as supreme.34 These constitutions are not supreme, at least not in the ordinary or full sense of the term. Unlike the independent countries, there is no clause in the constitutions of the overseas territories that affirms their supremacy or specifically renders all other laws subject to the constitution. The constitutions are contained in UK Orders in Council and can be revoked or amended by another Order in Council. There are no special procedures or requirements for making changes to the consti­ tutions that involve the legislature of the territories. The local legislatures are vested with wide power to make laws for the peace, order and good govern­ ment of the territory; however, this power does not authorise alteration of the constitution .35 It is a fundamental principle of constitutional law in the overseas territories that the UK Parliament is supreme and may legislate at will for any of the territories.36 This principle was recently borne out in R (Misick) v Secretary o f State for Foreign and Commonwealth Affairs. 37 The former Premier for the Turks and Caicos Islands, Michael Misick, brought judicial review proceedings before the High Court in England chal­ lenging fundamental changes made by Order in Council to the territory’s 2006 Constitution .38 Following investigations into endemic corruption and financial mismanagement in the territory, representative government was suspended, direct rule by the Governor introduced and jury trial abolished by Order in Council.39 The West Indies Act 1967 gives her Majesty the power by Order in Council to make provision for the government of Turks and Caicos Islands, among others, and to make laws for the peace, order and good government of the territory. Orders in Council exceptionally can be reviewed in the UK on the grounds of legality, rationality and procedural propriety 40 The High Court was unwilling to do so in this case, having regard to the wide powers granted by the West Indies Act41 to make laws for peace, order and good government. Although it was the practice to have some measure of 34 Benjamin v M inister o f Information AI 1998 HC 3 (CARILAW) January 7, 1998 (HC Ang), affirmed [2001] UKPC 8, (2001) 58 W.I.R. 171, [2001] 1 W.L.R. 1040, 10 B.H.R.C. 237, [2001] 4 L.R.C. 272 (PC Ang); Roach v A G V G 2002 HC 2 (CARILAW) January 31, 2002 (HC BVI); Richardson v AG AI 2006 HC 6 (CARILAW) April 27, 2006 (HC Ang), affirmed. 35 Sec Chenanl & Co v Arissol [1949] 2 A.C. 127; (1949) 65 T.L.R. 72; [1949] LJR 330 (PC Sey). Some constitutions confer a very limited power to amend specific constitutional provisions mainly having to do with constituency boundaries and the size of the House of Assembly and of the Cabinet. See Ber Const s.52(3); BVI Const s.47(2); Cl Const ss.44, 60; Mont Const s.32(2); TCI Const ss.27(6), 41(2). 36 lan Hendry and Susan Dickson, British Overseas Territories Law (Hart Publishing. 2011), p.22. See also M adzim bam uto v Lardner-Burke and George [1969] 1 A.C. 645 (PC Rhod), 37 R ( M isick) v Secretary o f S tate fo r Foreign and Commonwealth Affairs [2009] EWHC 1039 (HC Eng), affirmed [2009] EWCA Civ 1549 (CA Eng). 38 R ( M isick), above. 39 Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701). 40 R ( Buncoult) v Secretary o f State for FCO (No. 2 ) [2008] UKHL 61, [2009] 1 A.C. 453, [2008] 3 W.L.R. 955. [2008] 4 All E.R. 1055, [2008] 5 L.R.C. 769, [2008] NLJR 1530 (HL); R (M isic k ) v Secretary of State fo r Foreign and Commonwealth Affairs [2009] EWCA Civ 1549. See Ian Hendry and Susan Dickson, British Overseas Territories Law (Hart Publishing. 2011), pp.20-21. 41 1962 (c. 19), UK.

4-006

180

SUPREMACY OF II IE C O N Sl U'U iiO N

consultations with territories before introducing constitutional changes, this was not legally required. It was open to the Crown to introduce substantial constitutional change through Orders in Council and without any participa­ tion by the territory .42 The constitutions of overseas territories, though not supreme, are the fun­ damental law for the territories and direct all aspects of local governance. The power of the local legislature to make laws for the peace, order and good governance of the territory comes from the constitutions 43 Laws made by the local legislature are subject to the constitutions,44 as are the actions of the local executive,45 who also derive their authority from the constitutions. The judiciary exercises the power to review laws made by the local legislature and acts of the executive to determine their consistency with the constitutions— features of systems of constitutional supremacy. In Roach v AG,46 a case from the British Virgin Islands, Matthew J (Ag) intimated that the provisions of the constitution of that territory were supreme. Section 115 of the British Virgin Islands Constitution—a version of which is found in all Caribbean constitutions—required existing laws to be construed with such adaptations and modifications as may be necessary to bring them into conformity with the Constitution .47 He inferred that the constitution was supreme from this requirement to adjust existing laws so that they were brought in line with the constitution. The judge was correct in asserting that the constitutions of overseas territories rank higher than ordinary laws made by the territory’s legislature. There the comparison with constitutional supremacy ends. The constitutions of the overseas territories represent a form of higher law but not the highest or supreme law. The very modification clauses48 that Matthew J (Ag) referred to indicate that the existing laws to be brought in conformity with the constitutions do not include UK Acts of Parliament or instruments made thereunder. The focus of the constitution is laws made by the legisla­ ture in the territory which is bound by the constitution and an assemblage of other laws. The UK Parliament is a sovereign imperial legislature in respect of its overseas territories and it has made laws that directly apply to the ter­ ritories and form part of the constitutional framework for territories. The UK Colonial Law Validity Act 186549 is one such law. It is a fetter on local law-making. Laws enacted by the territory’s legislature will be invalid if they are repugnant to laws passed by the UK Parliament that have application in the territories. The UK West Indies Act 1962, which provides a mechanism for making constitutions for most Caribbean overseas territories, is another 42 Representative government was restored in October 2012 with the coming into force of the 2011 Constitution. 43 Ang Const Order s.47: Ber Const Order s.34; BVI Const Order s.72; Cl Const Order s.59(2); Mont Const Order s.71; TCI Const Order s.62. 44 See e.g. A ttride-Sterling v A G [1995] 1 L.R.C. 234 (CA Ber); Grape Bay L td v /1G(1999) 57 W.I.R. 62, [2000] 1 W.L.R. 574, [2000] 1 L.R.C. 167 (PC Ber); Richardson v Raynor (2011) 78 W.I.R. 159 (HC Ber). 45 Benjamin v M inister o f Information and Broadcasting [2001] UKPC 8; (2001) 58 W.I.R, 171; [2001] 4 L.R.C. 272 (PC Ang). 46 Roach v A G VG 2002 HC 2 (CARILAW) January 31, 2002 (HC BVI). 47 See below para.4-026. 4R Ang Const Order 1982 s.6(3); Ber Const Order 1968 s.2; BVI Const Order s.l 15(3); C.I Const Order 2009 s.5(3); Mont Const s. 117(3); TCI Const Order s.5(4). 49 1865 (c.63), UK.

4. THE MACHINERY FOR CHANGING THE CONS riTUTION

181

core instrument that is constitutional in effect and falls outside formal domes­ tic constitution. The Judicial Committee Act 18335u and 1844,51 the British Nationality Act 198152 and the British Overseas Territories Act 200253 are also core constitutional laws. 4. The Machinery for Changing the Constitution

(a) Entrenchment The text of every constitutional provision may be amended or altered, but the manner in which alteration may take place differs according to the provision being altered. The constitutional provisions have a hierarchical structure. Graded levels of parliamentary voting majorities, opportunities for public support and mature reflection are all built into the processes required to change their provisions.54 Entrenchment can be regarded as the imposition of requirements for making changes to provisions in the constitutions that exceed and are more onerous than those which must be observed in respect of ordinary laws.55 The rules governing alteration define the conditions under which all other constitutional norms may be legally displaced.56 They also indicate in broad terms the value the constitution-makers attribute to par­ ticular constitutional provisions. Entrenchment attempts to ensure that those provisions which were regarded as important safeguards by the constitution’s framers are not altered without “mature consideration” by Parliament and/ or the electorate.57 Entrenchment is also meant to strengthen institutional stability and the legitimacy of the government by making it difficult to change the basic institutional structure.58 To speak of the entrenchment of constitutional provisions implies a com­ parison between the process involved in changing those provisions and "some other, less cumbersome set of procedural requirements for effecting legal change.” 59 The baseline in Caribbean constitutional law is the pro­ cedure for enacting or amending ordinary legislation—a majority of all the members present of each House of Parliament. Entrenchment is meas­ ured in degrees,60 and entrenchment devices vary greatly in their range and

511 1833 (c,41), UK. 51 1844 (c.69), UK. 52 1981 (c.61),UK. 53 2002 (c.8), UK. 34 Hinds v R (1975) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam) at 214. 33 For an authoritative discussion on entrenchment, see Francis Alexis, ChangingCaribbean Constitutions (Antilles Publications, 1984), and Lloyd Barnett, The Constitutional Law o f Jamaica, (OUP, 1977), especially Appendix E. 56 Akhil Rccd Amar, “The Consent of the Governed: Constitutional Amendment Outside Article V” (1994) 94 Colum L Rev 457,461. 57 Hinds v R (1975) 24 W.I.R. 326 at 333; [1977] A.C. 195 (PC Jam) at 214. 58 Ruth Gavison, “What Belongs in a Constitution" (2002) 13 Constitutional Political Economy 89, 93. 59 Daryl Levinson, “Parchment and Politics: The Positive Puzzle of Constitutional Commitment’’ (2011) 124 Harvard L Rev 657, 697, n.128. 60 Levinson, above.

4-007

182

SI JP R F M A C Y Ol- 1IIH C'( )N S 1T 111H O N

complexity.61 There is no uniformity among Caribbean constitutions as to the provisions they entrench and the degree to which particular provisions are entrenched. Entrenchment devices are interlinked to produce deeper levels of entrenchment. Typically, for example, the requirement for the holding of a referendum is linked to other entrenching devices such as a qualified parlia­ mentary majority vote62 and delay mechanisms.63 Francis Alexis refers to this feature as the interlocking of entrenching devices. He gives as an example the entrenchment of the entrenching provision itself which must be adequately entrenched so that it may appropriately safeguard the other provisions it seeks to entrench.64 This is accomplished by rendering it susceptible to altera­ tion only by Parliament first overcoming the entire panoply of entrenching devices adopted by the particular constitution. (b) Low levels of entrenchment 4 -008

Low levels of entrenchment are assumed to be an indication that the affected provisions are not considered to be of vital importance to parliamentary democracy and constitutionalism .65 This is not a supposition that should be too readily drawn, since a remarkable number of key constitutional provisions fall in this category. As we saw, for example, in the Trinidad and Tobago Constitution the supremacy clause is entrenched at the lowest possible level.66 (i) Absolute majorities

4 009 Some constitutions have provisions that can be amended by an absolute majority of all the members of Parliament, or of each House where Parliament is bicameral.67 Ordinary bills have a lower standard. They must be enacted by a simple majority of those members present and voting in each House of Parliament, or the Parliament where it is unicameral. Constitutional provisions that merely require absolute majorities to be amended have been described by the Privy Council as “neither deeply entrenched nor entrenched” 68 even though it is acknowledged that the procedure for changing these laws is more 01 Francis Alexis. Changing Caribbean Constitutions (Antilles Publications, 1984). p. 12. 62 A&B Const s.47(2) [two-thirds of all the members of both Houses of Parliament]; Bah Const art.54(2).(3) [two-thirds of the members of each House for some provisions, and threequarters of the members of each House for others]; Dom Const s.42(2) [three-quarters of all the elected members of Parliament]; Gren Const s.39(2) [two-thirds of all the members of both House of Parliament]; Guy Const art.164(2) [a majority of all the elected members of the Assembly]; Jam Const s.49(4) [two-thirds of the members of each House]; SKN Const s.38(2) [two-thirds of all the Representatives]; SLU Const ss.41(2), (6)(b) [three-quarters of all members of each House]; SVG Const s,38(2) [two-thirds of all the Representatives]. 63 See A&B Const s.47(5); Dom Const s.42(3); Gren Const s.39(5); Guy Const a rt.164(2) (b); Jam Const s.49(3)(b); SKN Const s.38(3)(a); SLU Const s.41(6)(a); SVG Const s.38(3)(a). 64 Francis Alexis, Changing Caribbean Constitutions (Antilles Publications. 1984), pp.36 7. 65 Lloyd Barnett, The Constitutional Law o f Jamaica (OUP, 1977), p.261. 66 TT Const s.54(5). 67 See A&B Const s.47(2); Bah Const arts.54(2)(b), (3)(d): Bds Const s.49(4): B/e Const s.69(2), (3); Dom Const s.42(2); Gren Const s.39(2); Guy Const art. 164(1); Jam Const s.49(4); SLU Const s.41(2); SKN Const s.38(2); SVG Const s.38(2); TT Const s.54(2). 68 UCHR (1998) Ltd v Marshall-Burnett [2005] UKPC 3; (2005) 65 W.I.R. 268: [2005] 2 L.R.C. 840 (PC Jam) at [11]. See also Barnett, who refers to these provisions as “subject to

4. TIIH MACHINFiRY FOR CHANGINGTH F CONSTITUTION

183

stringent than that of changing an ordinary law.69 Given the difference between the two, it is preferable to describe such provisions as being entrenched at a very low level rather than to describe them as not being entrenched at all, since the essence of entrenchment is that more is procedurally required as compared with the ordinary legislative process. Quite apart from the difference in the nature of the simple majority required, even such provisions may have to meet other low entrenchment devices such as a statement in the amending Act that it is an Act for the purpose of altering the constitution .70 (ii) Declarations The requirement of a statement or declaration that the amending Act is an Act for the purpose of altering the constitution, safeguards a constitu­ tional provision against unintended or implied alteration. The clearest such measure is a stipulation that an Act of Parliament altering the constitution must declare in the Act itself that it is a law for that purpose.71 A failure to so declare will render the Act void to the extent of its inconsistency with the constitution.72 The requirement of a declaration that the law is amending the constitution effectively prevents Parliament from unintentionally amending the constitution simply because it has achieved the requisite majorities for constitutional change.73 Where the constitution requires a declaration, Alexis posits that the amending Act should specify which provision of the constitu­ tion it is amending.74 The practice followed in Trinidad and Tobago is for the amending Act merely to state in its preamble that it is an Act intended to alter the Constitution without specifying the section or sections being amended.75

4-010

(Hi) Certificates o f compliance Another safeguard against casual or unintended amendment is the require­ ment for a certificate of due compliance. Some Caribbean constitutions provide that a bill to alter the constitution may not be submitted to the Governor General for assent unless it is accompanied by a certificate from the Speaker of the House certifying due compliance with all the relevant manner and form requirements prescribed by the constitution.76 The absence of such a certificate renders legislation purporting to amend the constitution invalid.77

ordinary amendment procedure"; Lloyd Barnett, The Constitutional Law o f Jamaica. (OUP, 1977), p.460. 69 IJ( 'UR, above. 70 See e.g. 'IT Const s.54(5). 71 Sec e.g. Bah Const art.54(5); Bds Const s.49(6); TT Const s.54(5) 72 Integrity Commission v AG TT 2007 HC 201 (CARILAW) October 15, 2007 (HC TT) at [194] per Jones J. 71 For an instance where this occurred see Kariapper v Wijesinha [1968] A.C. 717 (PC Cey). 74 Francis Alexis, Changing Caribbean Constitutions (Antilles Publications, 1984), p. 18. ^ Integrity Commission v AG TT 2007 HC 201 (CARILAW) October 15, 2007 (HC TT) at [68] notes the usual procedure. 76 See e.g. A&B Const s.47(8); Bze Const s.69(6); Dom Const s.42(8); Gren Const s.39(8); SKN Const s.38(10); SLU Const s.41(l 1); SVG Const s.38(8). 7/ Bribery Commissioners v Ranasinghe [1965] A.C. 172 (PC Cey).

4-011

184

SUPREMACY OF THE CONSTITU1 ION

In Bribery Commissioner v Rancisinghen there was a challenge to the establishment of a bribery tribunal by the respondent who had been con­ victed under it. The respondent argued that the tribunal which was set up by an ordinary Act of Parliament of Ceylon required special majorities for its passage because it was inconsistent with the provisions of the Ceylon Constitution dealing with judicial appointments. The Privy Council agreed that the establishment of the tribunal amounted to an amendment of the provisions of the Constitution which required an endorsed certificate from the Speaker that the bill had obtained the requisite majority for amending the Constitution. Their Lordships rejected the argument that the Parliament of Ceylon was sovereign and that the courts must regard official copies of its laws as conclusive of their validity. The absence of the certifi­ cate was fatal and the law was void because of its inconsistency with the Constitution. In the Grenada case Mitchell v DPP,19 the absence of such a certificate was not fatal; but Mitchell is distinguishable because it was accepted on all sides that the legislation had been passed by the relevant parliamentary majority. (c) Deeper levels of entrenchment (i) Delay mechanisms -012

Most Caribbean constitutions restrain Parliament from amending particular provisions of the constitution in haste.80 A typical delay mechanism stipu­ lates that a bill to amend the constitution will be invalid unless a period of three months elapses between the introduction of the amendment bill and the beginning of its second reading. Delay mechanisms allow for a greater engagement of civil society in the process of constitutional amendment as time is afforded the public to gain an acquaintance with the amending pro­ vision, ventilate views on it and, if thought desirable, mount a campaign against it.81 The members of Parliament also have more time to assess the opinions of their constituents on the reforms. All constitutional amendments made in Dominica and St. Lucia are subject to a delay requirement.82 The delay requirements in Jamaica are particularly demanding.83 They require not only a three-month pause between the first and second reading, but also a further three-month interval between the second reading and passage of the bill in the House of Representatives.84 The Guyana Constitution has a delay mechanism that is linked to the holding of 78 Bribery Commissioners, above. 79 Mitchell v DPP (1985) 32 W.I.R. 241: [1986] A.C. 73 (PC Gren). See also Akar v A G [1970] A.C. 853; [1969] 3 W.L.R. 970; [1969] 3 All E.R. 384 (PC SL), where the Privy Council declined to take issue with the mere endorsement on a Sierra Leone Act that the Bill was “passed” without any reference to its having been passed in accordance with the qualified majority necessary for its validity. 80 A&B Const s.47(5)(a); Bze Const s.69(5); Dom Const s.42(3); Gren Const s.39(5)(a): Guy Const art. 164(2); Jam Const s.49(3)(e); SLU Const s.41(6); SKN Const s.38(3); SVG Const s.38(3). 81 Lloyd Barnett, The Constitutional Law o f Jamaica (OUP, 1977), p.269. 82 See Dom Const s.42(3), SLU Const s.41(6)(a). 83 Francis Alexis, Changing Caribbean Constitutions (Antilles Publications, 1984), p. 19. 84 Jam Const s.49(2).

4. TIIF. MACHINERY FOR CHANGING THF CONST 11IJTION

185

a popular referendum. In Guyana, bills amending constitutional provisions that define the state and its territorial limits, establish the supremacy of the constitution, establish Parliament or deal with the exercise of the powers of the President, among others, are not to be presented to the President for assent unless there has been an interval ranging between two and six months between their passage in the National Assembly and their submission to the electors by way of a popular referendum.85 (ii) Qualified parliamentary majorities Qualified or super-majorities are required for changing some constitutional provisions in all independent Anglophone Caribbean countries. Qualified majorities are often reinforced with other entrenchment mechanisms such as delay procedures and resort to a popular referendum. In countries with bicameral legislatures, the most common form of qualified majority is the requirement of a two-thirds majority of all members of each House . 86 This is the deepest level of entrenchment in the Barbados Constitution .87 A few constitutions entrench some of their provisions at a slightly higher level: a majority of three quarters of all the members of each House.88 Some consti­ tutions with bicameral legislatures establish different majorities for the lower and upper Houses; for example, a two-thirds majority vote for members of the lower House only.89 The most deeply entrenched provisions in the Trinidad and Tobago Constitution require a three-fourths majority of all members of the House of Representatives and a two-thirds majority of all the members of the Senate.90 Parliament in Trinidad and Tobago is authorised to pass legislation inconsistent with the provisions of the bill of rights if the Act expressly declares its inconsistency and is passed in each House of Parliament by the votes of not less than three-fifths of all the members of that House, a majority that is slightly less than the two-thirds majority that would ordinarily be required to amend the bill of rights.91 In the unicameral par­ liaments of Dominica, Guyana and St. Kitts and Nevis, a two-thirds major­ ity of the elected members is required for amendment to certain important provisions of the constitution .92 In St. Vincent and the Grenadines, another unicameral Parliament, a two-thirds majority of elected members is required for the amendment of any constitutional provision.93 85 Guy Const art.l64(2)(a) which refers to that article and arts 1, 2, 8, 9, 18, 51, 66, 89, 99 and 111. 86 See A&B Const s.47(2), (3), (4); Bah Const art.54(2)(b); Bds Const s.49(2); Jam Const s.49(4); TT s.54(2)(b). 87 Bds Const s.49(2). 88 Bah Const art.54(3)(d)(i) [of all the members of each House of Representatives]; Bze Const s.69(3) [of all the members of each House of Representatives]; Dom Const s.42(2) [of all the elected members of the unicameral Parliament]; SLU Const s.41(2) [of all the members of the House], s.41(4) [by the House where the Senate has made an amendment to an Amending Bill], 89 Sec Bze Const s.69(4) and SLU Const s.41(3), (4), (5). 90 y j Q j n st s 54(3)_

91 Above, s. 13. These are termed “Special Acts’’. The Special Act may be challenged success­ fully if it is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. See below paras 9 027 -9 032. 92 See Dom Const s,42(2): Guy Const art. 164(2); SKN Const s.38(2). 93 SVG Const s.38(2).

4-013

186

SUPREMAC Y OF I HE CONSTITUTION

(iii) Referenda 4-014

The deepest level of entrenchment requires holding popular referendum. Except for Barbados, Belize, and Trinidad and Tobago, all the constitutions of independent Caribbean states require the holding of such a referendum to amend their most deeply entrenched provisions. In the constitutions of some states it is sufficient if the amendment put to the referendum vote is supported by a simple majority of those electors who go to the polls.94 In other states, the requisite majority is as high as two thirds of the voting electorate.95 The requirement for a referendum is an entrenchment device that is usually additional to a qualified parliamentary majority. Though, in Guyana, to amend certain provisions, a referendum is prescribed as an alternative to the two-thirds qualified majority where the latter is not achieved.96 Referenda can be required by ordinary legislation. If Parliament makes the referendum a necessary step in the legislative process, then this may amount to an altera­ tion of the provisions of the constitution. But if the referendum is merely con­ sultative or advisory, then no amendment of the constitution is required .97 (iv) Entrenchment by infection

4-015

Entrenchment by infection occurs when entrenchment of a constitutional provision at a particularly high level implicates some other provision that is entrenched at a weaker level. This may occur because of the manner in which the two provisions are closely interwoven. Lloyd Barnett gives the example in the Jamaica Constitution of s.80 that establishes the office of Leader of the Opposition .98 An amendment to that section alone requires a majority vote of all the members of each House. On the other hand, the provision setting out the composition of the Senate,99 eight of whose members are appointed by the Governor General acting in accordance with the advice of the Leader of the Opposition, is entrenched at a deep level, requiring ulti­ mately a referendum for its alteration . 100 Barnett argues persuasively that it is difficult to conceive of Parliament abolishing s.80 by a majority vote of all the members of each House without also implicating the provision dealing with the composition of the Senate. The result of this entrenchment by infection is that an abolition of s.80 would require “resort to the formidable amendment procedures” . 101 In AG v McLeod, 102 the Privy Council held that s.49(2) of the Trinidad and Tobago Constitution was not entrenched by infection by s.49(l). Section 49(1) of the Trinidad and Tobago Constitution, which was deeply entrenched, 94 Bah Const art.54(2)(b)(ii); Dom Const s.42(3)(b); Guy Const art. 164(2)(b); Jam Const s.49(3)(d)(ii); SLU Const s.41(6)(b) 95 A&B Const s.47(5)(c); Gren Const s.39(5)(c); SKN Const s.38(3)(b); SVG Const s.38(3)(b). 96 Guy Const art. 164(2). 97 Prime Minister of Belize v Velios [2010] UKPC 7; (2010) 77 W.I.R. 87; [2010] 5 L.R.C. 365; [2010] All E.R. (D) 104 (Apr) (PC Bze). 98 Jam Const s.80. 99 Above, s.35. 100 Above, s.49(3). ,ni Lloyd Barnett, The Constitutional Law of Jamaica, (OUP, 1977), p.262. lu2 AG v McLeod (1984) 32 W.I.R. 450; [1984] 1 All E.R. 694 (PC TT).

4

t h e m a c h in e r y f o r c h a n g in g t h e c o n s t it u t io n

187

• ed members of the House of Representatives to vacate their seats jjajaent was dissolved. That section could only be amended by a 'vlieI1 fourths majority in the House and a two-thirds majority in the Senate. < "n 4 9 (2 ) addressed other circumstances in which a member was required ^ cate his or her seat, such as resignation or ceasing to be a citizen. It was deeply entrenched. Without more, it could be altered by a majority of the embers of both Houses. In 1978 Parliament amended s.49(2) to add that ember's seariwould also be vacated if the member resigns or is expelled !» partyAG (No. 2) (1978) 30 W.I.R. 310; [1979] A.C. 385 (PC TT). 177 Ang Const ss,19(3), 28(3); A&B Const s. 124; Bah Const art.79(4); Bds Const s.32(5); Bze Const s.34(4); Ber Const ss.l7(2), 21(6); BVI Const ss.35(2), 40(6); Cl Const s.31(4); Dom Const s.l 18(3); Gren Const s.108; Jam Const s.32(4); Mont Const ss.22(3). 26(4); SKN Const s.l 16(2); SLU Const s. 121(3); SVG Const s. 102(2); TT Const s.80(2); TCI Const ss.23(2). 29(9). In Guyana the clause was repealed in 2000 as part a slew of reforms to the 1980 Constitution.

7. NO JUDICIAL REVIF.W CLAUSES

2 33

question whether any such entity has “validly performed” any of its func­ tions.178 In Belize, any ouster of the court’s jurisdiction by implication is in fact expressly disavowed,'7y and the only entity whose functions cannot be inquired into is the Belize Advisory Council.180One explanation advanced for these clauses is that they were intended to preserve the “conventional” nature of the powers in question, in keeping with a key characteristic attached to their exercise in UK constitutional practice.181 The implications of these preclusive clauses are potentially serious in light of the nature and scope of the functions protected from review. The func­ tions entrusted to the Head of State range from executive/administrative in nature, such as the power to make key and influential appointments in the public service, to quasi-judicial, such as the power to grant a pardon or exercise mercy.182 Along this spectrum are functions that are highly political in nature, such as powers to appoint the Prime Minister and Leader of the Opposition, powers to revoke such appointments and the power to dissolve Parliament.185 The service commissions, established for the public service, police force, teaching service and judicial and legal services, are entrusted with crucial responsibilities within their respective areas in relation to making appointments, transfers and promotions, exercising disciplinary control and terminating appointments. These functions are integral to the creation and maintenance of an independent and efficient bureaucracy.184 Courts have approached the two types of ouster clauses differently. They have been more innovative, or overreaching depending on one’s perspective, with ousters related to the service commissions, likely because of the quasi-judicial nature of the functions reposed in those commissions, which touch upon rights of the individual. This is significantly distinct from the functions of the Head of State, which tend to be more political in nature. (i) The service commissions Some Caribbean constitutions provide that the question whether any service commission, its members or delegates have “validly performed any function vested” in it or them, “shall not be inquired into in any court.” 185 Courts have not interpreted this clause at face value, and will not exclude their scrutiny if in the exercise of the function in question the entity acted without or in excess of its jurisdiction,186 unreasonably,187 or where the decision was reached in 1/8 Bah Const art. 125(4); Bds Const ss.77, 106; Bze Const s.54(18); Guy Const art.226(6); Jam Const s.l 36. VN Bze Const s. 127. 18,1 Above, s.54( 18). 181 Margaret Demerieux. “The Codification of Constitutional Conventions in the Commonwealth Caribbean Constitutions" (1982) 31 ICLQ 263, 265. See above paras 2 006 2 007. IS” Sec above paras 2 007 2 008. 181 See above paras 2 007 2-008. 184 See below para.7 -032. l!n Bah Const a rt.125(4); Bds Const ss.77, 106; Bze Const s.54(18): Jam Const s. 136. '*• Re Sarran (1969) 14 W.I.R. 361 (CA Guy); Thomas v A G (1981) 32 W.I.R. 375; [1982] A.C. 113 (PC TT). 187 C CSV v Minister fur the Civil Service [1985] A.C. 374 (HL); Richardson v AG AI 2006 HC 6 (CARILAW) April 27, 2006 (HC Ang).

5 019

234

JUDICIAL Rb VIEW

violation of natural justice or some other principle of procedural fairness.188 In sum, where the decision was reached in violation of the constitution itself the courts will sidestep the ouster clause.189 These limits on ouster clauses took time to evolve and encompass such comprehensive ground. The earliest cracks in the clauses’ protective shield came in a trilogy of Guyanese cases decided in the late 1960s.190 Each con­ cerned the scope of a constitutional ouster clause in relation to a service commission.191 In each case, the Court of Appeal of Guyana held that the court would not be precluded from inquiring into the performance of the Commission’s functions where it acted without jurisdiction. The Guyana Constitution at the time also contained a “proviso”, which sub­ jected every person and authority empowered to act under the Constitution to the requirement of exercising their functions constitutionally.192 In Re Sarran,m this article was invoked by Crane JA to found a wider notion of jurisdiction namely, one which would permit judicial review where lawful powers are exercised invalidly. The cases that followed did not adopt this wider notion of jurisdiction as entitling judicial inquiry, but they all agreed that an ouster clause would not be effective to shut out inquiry by a court where the entity in question purported to do something it was not empowered to do. It was not until more than a decade later that the rest of the Caribbean decided to follow this expansive approach to judicial review. In Thomas v AG,m which concerned the dismissal of the plaintiff by the Police Service Commission of Trinidad and Tobago, an issue arose whether the action was maintainable in light of the ouster clause in the 1962 Trinidad and Tobago Constitution. The Board followed the approach adopted in Anisminic Lid v Foreign Compensation Commission195 to statutory ouster clauses. If a service commission acts outside of its jurisdiction, this would entitle the court to scrutinise its actions in spite of the ouster clause,196though in Thomas it could not do so in the absence of an allegation to this effect. The Privy Council identified yet another limitation on the operation of the ouster clause. The ouster clause was also constrained by the right of a police officer to a fair hearing in respect of proceedings to determine his rights and obligations and to redress where that right had been breached. Applying the maxim of inter­ pretation generalia specialibus non derogant, the specific right to due process and redress overrode the general no-judicial review clause. This more techni­ cal explanation for reading down constitutional ouster clauses would in time be replaced by a more normative claim- that the limit on access to justice

188 Thomas v A G (1981) 32 W.I.R. 375, [1982] A.C. 113 (PC TT); Yasem v A G (1996) 62 W.I.R. 98 (CA Guy); Lewis v A G (2000) 57 W.I.R. 275, [2001] 2 A.C. 50 (PC Jam); A G v Joseph [2006] CCJ 3 (AJ), (2006) 69 W.I.R. 104 (PC Bds). 189 Thomas , above; Yaseen, above; Lewis, above; Joseph, above. 190 Re Sarran (1969) 14 W .I.R. 361 (CA Guy); Re Langhorne (1969) 14 W.I.R. 353 (CA Guy); Evelyn v Chichester (1970) 15 W.I.R. 410 (CA Guy). 191 Guy Const art. 119(6). 192 Above, art. 125(8). 193 Re Sarran (1969) 14 W .I.R. 361 (CA Guy). 194 Thomas v A G (1981) 32 W.I.R. 375 (PC TT). 195 Anisminic L td v Foreign Compensation Commission [1969] 2 A.C. 147 (UKHL). 196 TT Const 1962 s,102(4).

7. NO

Jl

IDICIAI. RPVIEW CLAUSES

235

and procedural fairness contravenes core expectations of the rule of law and r e s p e c t for fundamental rights. (ii) Powers o f the Head o f State In contrast, Caribbean courts are far less willing to go behind ouster clauses that insulate the largely political powers exercised by the Head of State spanning from the appointment of a Prime Minister,197 the appointment198 and removal199 of government ministers, and the appointments to service commissions,200 to the summoning and dissolution of Parliament.201 The notable exception is the exercise of the prerogative of mercy, which has impli­ cations for the fundamental rights of convicted persons. Here the courts insist on fair procedures regardless of the ouster clauses.202 Courts have adverted to the administrative nature of most of the powers of the heads of state, as dis­ tinct from acts of a judicial nature, as supporting their non-justiciable quali­ ty.203The effect of the clause is seen to support administrative efficiency in the affairs of government.204 In Re Blake,205 Floissac CJ stated that the subject matter in question—the appointment of a Prime Minister—was not justicia­ ble on public policy grounds since it could lead to the revelation of sensitive confidential opinions with undesirable consequences for those involved.206 Similarly, with regard to the election of a President, it has been held that this high office should be insulated from controversy.207 Where a political remedy exists to secure constitutional compliance, courts are even more reluctant to sidestep an ouster of their jurisdiction in relation to the Head of State. Floissac CJ in Blake pointed out that the Constitution had itself provided a remedy for determining the correctness of the choice for Prime Minister, in the form of a no confidence motion in the government,208which made judicial intervention unnecessary. After the 18-18 split in the Trinidad and Tobago House of Representatives, occasioned by the 2001 electoral results, litigation was brought to compel the Prime Minister to hold general elections before a certain date. Mohammed J adverted to the existence of constitutional checks and balances for the prevention of abuse together with a specific proce­ dure for removing a Prime Minister, which in his view justified the lack of jurisdiction in the court to grant the relief sought.209 107 198 199 20,1 2,11

Re Bluke (1994) 47 W.I.R. 174 (CA SKN). Knowles v Supt o f Fox H ill Prison [2005] UKPC 17; (2005) 66 W.I.R. 1 (PC Bah). llo d g e v Herman VG 1991 CA 2 (CARILAW) January 14. 1991 (CA BVI). Re Bain TT 1987 HC 132 (CARILAW) July 30, 1987 (HC TT). Francois v Compton LC 2003 CA 2 (CARILAW) June 18. 2003 (CA SLU). 202 See Yaseen v A G (1996) 62 W.I.R. 98 (CA Guy); Lewis v A G (2000) 57 W.I.R. 275, [2001] 2 A.C. 50 (PC Ja m ); A G v Joseph [2006] CCJ 3 (AJ). (2006) 69 W.I.R. 104 (CCJ Bds) at [41] per

de la Bastide and Saunders J. 203 Re Bain TT 1987 HC 132 (CARILAW) July 30, 1987 (HC TT). 2,14 Albert Fiadjoc, Commonwealth Caribbean Public Law, 3rd edn (Routledge Cavendish, 2008), p.68. 21,5 Re Blake, (1994) 47 W .I.R. 174 (CA SKN). 206 Re Blake above, at 181. 207 Prime M inister v John (2014) 83 W.I.R. 370 (CA Dom) at 386. 21,8 Re Blake (1994) 47 W.I.R. 174 (CA SKN) at 182. 209 Re Office of Prime M inister TT 2002 HC 115 (CARILAW) August 27, 2002 (HC TT) affirmed in Bobb v Manning [2006] UKPC 22, [2006] 4 L.R.C. 735 (PC TT).

5-020

2 36

JUDICIAL REVIbW

However, ouster clauses related to the powers of the Head of State are resil­ ient but not impenetrable. In Knowles v Superintendent o f Fox Hill Prison,m for instance, the Privy Council pointed out that the ouster clause would not preclude judicial inquiry into violations of the Constitution, while in Re Office o f the Prime Minister211 Mohammed J acknowledged that judicial review would be available where a breach of the rule of law is alleged. The ouster clause could be said to establish a presumption of regularity which can be rebutted if there is manifest, glaring and capricious exercise of discretion. In Hodge v Herman,212 there were allegations of misconduct by a minister in the British Virgin Islands. The Chief Minister announced that he was request­ ing the setting up of a commission of inquiry to investigate. The Governor set up the commission and the latter’s report was damning. Discussions took place between the Chief Minister and the minister in question, in which the former asked the latter to resign, and the latter refused. On the second such refusal, the Chief Minister advised the minister that he left him no choice in the matter. His appointment as minister was revoked by the Governor. The question was whether the Governor by appointing a commission of inquiry used an improper procedure to determine removal instead of acting on the advice of the Chief Minister as the Constitution required. The relevant provision stated that when the Governor is directed to exercise a function in accordance with the advice of a person, the question whether he has so exercised that function shall not be enquired into in any court. The Court of Appeal noted that there was no factual basis to support the claim that the Chief Minister did not advise on the removal. The recital for the instrument of revocation indicated that the revocation was on such advice and the evi­ dence led as to the conversations between the minister and the Chief Minister strongly indicated that if he did not resign the Chief Minister would have no choice but to have him removed. The Court concluded that the ouster clause created a legal presumption that along with the facts pointed “unwaveringly to the conclusion that the Governor revoked the appointment of the minister in accordance with the advice of the chief minister.” In Richardson v AG,213 the Anguilla Constitution gave the Governor the power to appoint, discipline and remove magistrates after consultation with the Judicial and Legal Services Commission. An ouster applied to the exercise of the Governor’s functions: “Where the Governor is directed by this Constitution to exercise any func­ tion in accordance with the advice of or after consultation with any person or authority, the question whether he has so exercised that function shall not be inquired into in any Court.”214 Bruce-Lyle J said he could not go behind the ouster clause “to inquire into the exercise of the Governor’s wide powers of discretion as provided for in 210 Knowles v Supt of Fox Hill Prison [2005] UKPC 17 (2005) 66 W.I.R. 1. 211 Re Office of Prime Minister TT 2002 H C 115 (CARILAW) August 27, 2002 (HC TT) later affirmed in Bobb v Manning [2006] UKPC 22, [2006] 4 L.R.C. 735 (PC TT). 212 Hodge v Herman VG 1991 CA 2 (CAIRLAW) January 4,1991 (CA BVI). 213 Richardson v AG AI 2006 HC 6 (CARILAW) April 27, 2006 (HC Ang). 214 Ang Const s.28(3).

7. NO JUDICIAL REVIEW CLAUSES

237

the said Section” unless there was “a manifest, glaring and capricious abuse of the exercise of that discretion.”215 Ascertaining this could demand some inquiry into the exercise of the function by the Head of State. (b) Shut-out or savings clauses The constitutions of independent states of the Anglophone Caribbean contain provisions which shut out judicial review in the area of fundamental rights. What is termed a special savings clause, olfers a proviso or exception to a specific right. Typically it immunises punishments existing prior to the enact­ ment of the constitution or earlier appointed date from judicial review on the ground of its inconsistency with the protection against inhuman or degrad­ ing punishment. The general savings law clause, olfers wholesale immunity in respect of all the guaranteed rights. Laws in existence before the date of the constitution cannot be scrutinised for consistency with any provision in the chapter protecting fundamental rights. With these savings law clauses, colonial laws and punishments are caught in a time warp, continuing to exist in their primeval form, immune to the evolving understandings and effects of applicable fundamental rights. These clauses, and in particular the general savings provision, operate in constant tension with the bill of rights and frustrate the aims and purpose of the constitutional guarantees.216 A species of new, targeted shut-out clauses appears in the 2011 amendments to the Jamaica Constitution that introduced a Charter of Rights to replace the independence bill of rights found in chapter 3 of the Constitution.

5-021

(i) The special savings clause The special savings clause dealing with punishments in some constitutions 5-022 is inserted as a subsection to the right,217 while in a few others it is set out separately in the schedule to the parent Constitution Order in Council.218 It provides that punishments and, in Barbados and Guyana treatment as well,219 authorised under any law prior to the coming into force of the constitution cannot be held to be inconsistent with or in contravention of the constitutional provision guaranteeing protection against inhuman and degrading punishment. Paragraph 10 of Sch.2 to the St. Lucia Constitution Order 1978 provides: “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 of the Constitution [‘No person shall be subjected to torture or to inhuman or degrading punishment or other treatment’] to the extent that the law in question 215 Richardson v A G A I 2006 HC 6 (CARILAW) April 27, 2006 (HC Ang) at [12]. 216 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Caribbean Law Publishing Co. 2002) pp.69, 252-5. 2,7 A&B Const s.7(2); Bah Const art.l7(2); Bds Const s. 15(2); Gren Const s.5(2); Guy Const art. 141 (2); Jam Const s. 13(7). 218 Saint Christopher and Nevis Constitution Order 1983 (SI 1983/881) Sch.2, para.9; St. Lucia Constitution Order 1978, (SI 1978/1901) Sch.2, para.10; St. Vincent Order 1979 (SI 1979/916) Sch.2, para.10. 2,9 Bds Const s. 15(2); Guy Const art. 141 (2).

238

JUDICIAL RFVIEW

authorises the infliction of any description of punishment that was lawful in St Lucia immediately before 1 March 1967 [being the date on which St Lucia became an Associated State].” The clause is a proviso to this specific right that puts colonial punishments beyond challenge on the ground that they are inhuman or degrading. This clause does not demand continuity of the law authorising the punishment. It simply requires the punishment to have been lawful before the appointed day, T p and be authorised by a law today, T2. If the law authorising a specific pun­ ishment is repealed after T t and re-enacted at T2 the protection of the clause is maintained. This is what happened in the Bahamas, where flogging was a punishment authorised by law before the appointed day, independence, T r It was repealed after independence and reintroduced in similar terms in a law in 1991. A challenge to a sentence of flogging on the basis that it was inhuman or degrading failed because this savings clause preserved as constitutional colonial punishments, even if at some stage after independence they were no longer lawful.220 What mattered was that at T2, the punishment was author­ ised by law. With its focus on punishments, this clause protected the death penalty and judicial corporal punishment from constitutional challenge and has become a part of impassioned scholarly and even national debates on crime and punishment across the Caribbean.221 Given its severe restriction on a guaranteed fundamental right, this clause must be construed very narrowly.222 The clause immunises certain punish­ ments from a constitutional challenge. Treatment associated with carrying out the punishment falls outside its ambit. This distinction between punish­ ment and treatment provided an avenue for delimiting the application of the death penalty, though it took some time for the law to evolve in this regard. First raised in Riley v AG223 in 1982, the appellants in that case argued that delays between the imposition and execution of their death sentences consti­ tuted inhuman and degrading punishment or other treatment. Their claim was dismissed on a simple application of the savings clause which was held to have saved the death penalty. Still, a passionate dissent by Lords Scarman and Brightman presaged the law’s development by adverting to the distinc­ tion between the death sentence as punishment and the long delay as treat­ ment, arguing that the latter was not authorised by any law prior to Jamaica’s independence and was therefore not saved by the proviso.224 It took more than a decade for this dissenting opinion to be vindicated, which eventually occurred in Pratt v AG,225 where the facts were altogether far more extreme than those in Riley. By the time the appeal was heard, the appellants had been on death row for more than 14 years, during which time 220 Pinder v the Queen (2002) UKPC 46; (2002) 61 W.I.R. 13; [2003] 1 A.C. 620 (PC Bah).

221 See e.g. Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the W est Indian Polity (Kingston: Caribbean Law Publishing Co, 2002), Ch.4; Dennis Morrison, “The Judicial Committee of the Privy Council and the Death Penalty in the Commonwealth Caribbean: Studies in Judicial Activism” (2006) 30 Nova L Rev 403. 2,2 R v Hughes [2002] UKPC 12; (2002) 60 W.I.R. 156; [2002] 2 A.C. 259 (PC SLU). See above para.3 020. 223 Riley v A G ( 1982) 35 W.I.R. 279; [1983] 1 A.C. 719 (PC Jam). 224 Riley v A G { \% 2 ) 35 W.I.R. 279 at 288 89; [1983] 1 A.C. 719 (PC Jam) at 730 31. 225 P ratt v A G (1993) 43 W.I.R. 340; (1994) 2 A.C. 1 (PC Jam).

7. NO JUDICIAL REVIEW CLAUSES

239

death warrants had been read to them three times. In finding a violation of the protection against inhuman punishment, the Privy Council acknowl­ edged that the death penalty as a punishment was saved; the inhuman treat­ ment of the appellants was not. Prolonged delay could have been questioned under pre-independence law and stayed as an abuse of process, according to the Privy Council. Consequently they substituted the appellants’ death sentences with that of life imprisonment. Going further, the Privy Council stipulated that “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment or other treatment’.”226 This meant the commutation of 105 death sentences in Jamaica alone,227 while comparable outcomes rippled across the rest of the Caribbean where there was no doubt that the shared constitutional provisions would be simi­ larly interpreted by the Privy Council.228 More profoundly, however, the decision meant that if a country wished to retain the death penalty as a lawful punishment it had to ensure that its criminal justice system operated efficiently. In overcrowded and under-resourced Caribbean court systems this would be a high bar. Constant litigation by capital defendants testing and eroding the protection of the savings law clauses secured the “near de facto abolition of the death penalty in Caribbean states subject to the Privy Council’s jurisdiction.”229 Pratt was not warmly received by Caribbean states and some commenta­ tors. Some disputed the authority of the court to commute a statutorily imposed sentence on the basis that such a power was reposed only in the Governor General.230 Others argued that the imposition of time limits would “cabin” due process to the detriment of convicted persons.231 Nonetheless, it inaugurated a fine and enduring distinction between the immunity the clause gives to the “punishment” and wider “treatment” or how the punishment is carried out, which falls outside the scope of the clause. With this narrow interpretation, the mandatory nature of the death penalty became open to scrutiny on the ground that it was inhuman and degrading. The Privy Council in an argument of great ingenuity distinguished between punishments that 22b Pratt v A G (1993) 43 W.I.R. 340 at 362; (1994) 2 A.C. 1 (PC Jam) at 35. ” 7 James Gray, “Exerting Outdated Colonial Power or Keeping Step with the Evolving Standards of Decency?” (2004) J of HR and U K Practice 5.1, [10]. 228 Joanna Harrington, “The Challenge to the Mandatory Death Penalty in the Commonwealth Caribbean" (2004) 98 AJIL 126. 129; Ezekiel Rediker. “Courts of Appeal and Colonialism in the British Caribbean: A Case for the Caribbean Court of Justice” (2013) 35 Mich J Inti L 213, 229. 229 Laurence Heifer, “Overlegali/ing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes” (2002) 102 Columbia L Rev 1832, 1879. 2V) Berthan Macaulay QC, “The Jamaica Constitution: Conflict of Powers - the Pratt and Morgan Case” (1993) 18 WILJ 45; David Simmons, “Conflicts of Law and Policy in the Caribbean: Human Rights and the Enforcement of the Death Penalty, Between a Rock and a Hard Place" (2000) 9 Journal of Transnational Law and Policy 263-287. 3JI Simeon McIntosh, “Cruel, Inhuman and Degrading Punishment: A Re-reading of Pratt and M organ” (1998) 8 Carib LR 1.

240

JUDICIAL RLVIL.W

were “authorised” or allowed by law and those that were mandated.23- It held that only the former types of punishments were saved under the proviso. The special savings law clause exempted the death penalty itself from the challenge that it was inhuman and degrading. It did not go further to protect the way it was carried out, mandatorily. Once the immunity afforded by the savings clause fell away, the penalty was found to be a violation of the protec­ tion against inhuman punishment, and the Privy Council thereupon modified the law to remove its mandatory aspect. (ii) General savings law clause 5-023

The general savings law clause is of wider scope than the special savings law clause because it is directed at laws in force before the appointed date and not confined to punishments. It was included in the constitutions of the first five Caribbean countries to achieve independence233 and Belize.134 It survives in its original form in Trinidad and Tobago, Guyana, Barbados and the Bahamas. In 2011 Jamaica replaced its general savings law clause with a much modified clause.235 The Belize clause was a transitional provision, lasting for five years from the date of the enactment of the constitution, and has no impact today. The general savings law clause precludes judicial scrutiny of laws in exist­ ence at the date the constitution came into force for their conformity with the chapters protecting fundamental rights and freedoms in the constitu­ tion. This date varies among the constitutions, being independence in the Bahamas and Barbados and the entry into force of the republican constitu­ tion in Trinidad and 'Tobago and the socialist constitution in Guyana. In the constitutions where it survives, except for Trinidad and Tobago, it applies to written laws only. “Existing law” is generally defined broadly under these clauses to include not just laws continuously in existence but those that have been repealed and re-enacted without alteration.236 Where the alteration of a law does not render it inconsistent with a fundamental right “in a manner in which or to an extent to which” it was not previously so inconsistent the protection of the savings law clause continues.237 Trinidad and Tobago’s provision goes further; if an amended law is found to derogate from a funda­ mental right in a manner or to an extent that it previously did not, it must be replaced by the previously existing law.238 For much of the first three decades of litigation under Caribbean consti­ tutional bill of rights, the general savings law clauses were associated with a normative assumption “that the fundamental rights which [the bill of rights] covers are already secured to the people of Jamaica by existing law”.239 2,2 R v Hughes [2002] UKPC 12; (2002) 60 W .I.R. 156; [2002] 2 A.C. 259 (PC SLU). See also above para.3 020. 333 Bah Const art.30; Bds Const s.26; Guy Const Art 152; Jam Const s. 26(8); IT Const s.6. 334 Bze Const s.21. 3,5 Jam Const s . 13( 12). 236 Bah Const art.30(l)(b); Bds Const s.26(l)(b); Guy Const art. 152(l)(b); TT Const s.6(T)(b). 337 Bah Const art.30(l)(c); Bds Const s.26(l)(c); Guy Const art.l52(l)(c); TT Const s.6(l)(c) 238 TT Const s.6(2). 339 DPP v NasruHa (1967) 10 W.I.R. 299 at 303, [1967] 2 A.C. 238 (PC Jam); See also Lon Diplock in De Freitas r Benny [1976] A.C. 239 (PC TT) at 244. See above paras 3 014 3 01 5.

7. NO JUDICIAL REVIEW CLAUSES

241

Thus, the only work for the bill of rights was in relation to future enact­ ments, not to police past laws. This narrative exerted tremendous appeal in the immediate post-independence period, routinely trotted out to affirm the perfection of inherited laws.240 This rationale has now been significantly disavowed, replaced by the more pragmatic view advanced by Lord Hope in Watson v i?,241 that the clause was intended to ensure “legal certainty and to secure an orderly transfer of legislative authority from the colonial power to the newly independent democracy.”242 Evidently, this rationale holds no force five decades after independence. In Matthew v State,243 Lord Nicholls adverted to this very anomaly, observing with some incredulity that the “savings clauses were intended to smooth the transition, not to freeze standards for ever.”244 Like the special savings law clause, the more expansive general one must be interpreted narrowly to give the full effect to the guarantees of rights found in the bills of rights.245 The clause applies only to the chapter dealing with fundamental rights. It offers no immunity from judicial review if the existing law violates the constitution in some other way, for example, if it contravenes the separation of powers doctrine. This was the situation in DPP v Mollison,2Ab where a section of the Juveniles Act provided a mandatory sentence of detention at the pleasure of the Governor General for any person under 18 convicted of murder. Because this was a pre-independence law, the respondent was barred by the general savings law clause from arguing that this sentence violated his fundamental rights. However he was not pre­ cluded from a resting constitutional claim outside the bill of rights—that the sentence violated the doctrine of separation of powers by transferring the sentencing power to the executive. The Privy Council thereupon exercised its power to modify the law to bring it in conformity with the constitution.247 It substituted a penalty of detention at the court’s pleasure in place of the pleasure of the Governor General.248 The general savings law clause is thus demonstrably draconian.249 By exempting colonial legislation from the constitutional human rights regimes, laws that were instrumental tools of oppression and buttressed social inequali­ ties are beyond judicial review.250 Simeon McIntosh describes the savings law

34(1 Bunion v Alcoa (1973) 17 W.I.R. 275 (CA Jam) at 305 per Parnell J; Franklyn v R (1993) 42 W.I.R. 262 (PC Jam) at 267 per Lord Woolf. 241 Watson v R [2004] UKPC 34; (2004) 64 W.I.R. 241; [2005] 1 A.C. 472 (PC Jam). 242 Watson v’ R (2004) 64 W.I.R. 241 (PC Jam) at 261 per Lord Hope. See below Ch.6. 143 M atthew v S ta te [2004] UKPC 33; (2004) 64 W.I.R. 412; [2005] 1 A.C. 433 (PC TT). 244 M atthew , above, at [69]. ’45 Watson v R [2004] UKPC 34; (2004) 64 W.I.R. 241; [2005] 1 A.C. 472 (PC Jam). ’ 4" D P P v Mollison [2003] UKPC 6; (2003) 64 W.I.R. 140; [2003] 2 A.C. 411 (PC Jam). 247 Jamaica (Constitution) Order in Council 1962 s.4(l). See above para.4- 026. 248 D P P v Mollison [2003] UKPC 6; (2003) 64 W.I.R. 140; [2003] 2 A.C. 411 (PC Jam) at [17], ’’49 See generally Margaret Burnham, “Saving Constitutional Rights from Judicial Scrutiny: The Savings Clause in the Law of the Commonwealth Caribbean” [2005] 36 (2/3) U Miami Inter-Am L Rev 249; Derek O’Brien, “The Saving Laws Clauses of the Constitutions of the Commonwealth Caribbean and the Death Penalty” [2005] PL 13; Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the W est Indian Polity (Caribbean Law Publishing Co, 2002), p.250 5. 2511 See Diana Paton, “Small Charges: Law and the Regulation of Conduct in the Post-Slavery Caribbean” (2014 Elsa Goveia Memorial Lecture, UWI, Jamaica April 1,2014,).

242

JUDICIAL RHVIHW

clause as “one of the most disabling devices in the West Indian Independence Constitution.”251 He added that it “indulges a very restrictive and crabbed reading of some of the more critical fundamental rights [and] it should there­ fore be removed.”252 Caribbean legislatures have been slow to review and repeal these colonial laws or to remove the clauses, now five decades after independence. Such constitutional reform has been obdurately resisted in Barbados despite a binding ruling of the Inter American Court of Human Rights requiring it.253 In the two countries where significant constitutional reform has taken place, the general savings law clause has been retained in one254 and, remarkably, enhanced in some respects in the other.255 Given how formidable the general savings law clause is as an impedi­ ment to judicial review, its interpretation, not surprisingly, generated sharp divisions in the sustained litigation around the mandatory death penalty in the Privy Council in the early 2000s. The special savings law clause, nar­ rowly interpreted, was no impediment to the claim that the mandatory death penalty was inhuman and degrading.256 Very technical and narrow interpre­ tations of the general savings law clause in the Bahamas and Jamaica led to the demise of the mandatory death penalty in those countries.257 In Barbados and Trinidad and Tobago, by a very slim majority of 5:4 the Privy Council concluded that the general savings law clause was effective in shielding the colonial laws that provide for a mandatory death sentence from a constitu­ tional challenge that it violated guaranteed fundamental rights.258 5 024 For a brief period, the Privy Council came to the opposite conclusion. This was premised on reading the general savings law clause together with the modification clause found in the Constitution of the Republic of Trinidad and Tobago Act,259 to which the Constitution was attached as a schedule. In Roodal,m the Privy Council in a majority judgment held that a two-stage approach was called for in interpreting an existing law. First, the law would be considered against the modification clause in the primary Act, which allows the court to alter or modify the law so as to bring it into conformity with the Constitution. Second, if the law is modified so that the mandatory death penalty becomes discretionary —the general savings law clause still applies to it and immunises the existing (modified) law from a rights challenge. The crux is that the clause would have no negative bite with 251 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the IVest Indian Polity (Caribbean Law Publishing Co, 2002), p.260. 232 McIntosh, above. 233 Rowe i’ Barbados, Inter-American Court of Human Rights. Series C No. 169 (November 20, 2007). 254 Guyana adopted extensive reforms to the current 1980 Constitution, including its funda­ mental rights provisions, between 2000 and 2001. 255 Jamaica replaced the chapter of its independence Constitution protecting fundamental rights and freedoms with a Charter of Fundamental Rights and Freedoms in 2011. 256 R v Hughes [2002] UKPC 12; (2002) 60 W.I.R. 156; [2002] 2 A.C. 259 (PC SLU). 23; Watson v R [2004] UKPC 34, (2004) 64 W.I.R. 241, [2005] 1 A.C. 472 (PC Jam): Rowe v R [2006] UKPC 10, (2006) 68 W.I.R. 10 (PC Bah). See above para.3 020. 2,8 Boyce v R [2004] UKPC 32, (2004) 64 W.I.R. 37, [2005] 1 A.C. 400 (PC Bds); Matthew v State [2004] UKPC 33. (2004) 64 W.I.R. 412, [2005] 1 A.C. 433 (PC TT). 259 Trinidad and Tobago Constitution of the Republic of Trinidad and Tobago Act 1976. s.5(l). 2611 Roodal v State [2003] UKPC 78; (2003) 64 W.I.R. 270; [2005] 1 A.C. 328 (PC TT).

7. NO JUDICIAL RHVIF.W OLAIJSKS

243

modification preceding it. If the law could not be modified in phase one, in phase two the general savings law clause would kick-in to save it from incon­ sistency with a guaranteed constitutional right. The modification power was admittedly so wide, it would only be in rare cases that existing laws would not be capable of modification because of linguistic or conceptual reasons.261 According to Lord Steyn, writing for the majority in Roodal, under this approach the modification clause would play a “dynamic but not extrava­ gant role”.262 It was justified both by “orthodox canons of construction” which required a generous approach to fundamental rights while adopting a narrow construction on limits, and by Trinidad and Tobago’s interna­ tional obligations.262 Applying this approach allowed the Privy Council to modify the existing offence of murder so as to create a discretionary sentence of death upon conviction. It had been mooted decades before by Francis Alexis.264 “Modification first” proved to be short-lived. The following year the same issue was considered afresh, this time by a panel of nine judges, including the Caribbean Zacca J. In two separate appeals - Boyce v R265 from Barbados and Matthew v State266 from Trinidad and Tobago—the two-stage approach was rejected and Roodal overruled by a 5:4 majority. The essence of the majority holding was that the Roodal approach did violence to the clear intention of the general savings law clause to preserve existing law from chal­ lenge. The majority found it implausible that the framers would have created an extra-constitutional mechanism to undermine that effect. In the major­ ity's view, in giving effect to this intention the courts were respecting the supremacy of the constitution. Lord Hoffman giving the majority judgments in both cases sharply dismissed the arguments which prevailed in Roodal as irrational, beyond the powers conferred by the constitutional instruments, and inconsistent with the language and purpose of the constitutions. Besides, the power of modification asserted by the appellants was contained in the Act or Order in Council giving effect to the constitutions, which could not take precedence over the constitutions which were supreme law. The net effect of this was simple. The mandatory death penalty was constitutional in Barbados and Trinidad and Tobago. The insistence of the majority that the constitutions, including their general savings law clauses, have a patent meaning is at least open to disputation. The majority read the clause as a “free-standing, univocal command”.167 Their interpretation presumes these constitutions and their bills of rights arc “a harmonious unity” or the product of a unified and “tightly integrated” law­ making process.268 Caribbean constitutions were in fact imperfect products of “constitutional bricolage”—pragmatic constitutional borrowings from tools 2fc| Boyce v R [2004] UKPC 32: (2004) 64 W.I.R. 37; [2005] 1 A.C. 400 (PC Bds) at [38], Roodal v S tale [2003] UKPC 78; (2003) 64 W.I.R. 270; [2005] 1 A.C. 328 (PC TT) at [28], Roodal . above.

?M Francis Alexis, "When is an Existing Law Saved?” [1975] PL 256. 265 R o w e v R (2004) 64 W.I.R. 37; [2005] 1 A.C. 400 (PC Bds). ’6h M atthew v S tate [2004] UKPC 33; (2004) 64 W.I.R. 412; [2005] 1 A.C. 433 (PC TT).

Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Caribbean Law Publishing Co, 2002), p.254. m Mark Tushnet, "The Possibilities of Comparative Constitutional Law" (1999) 108 Yale LJ 1225,1286 1287.

244

JUDICIAL RhVILW

at hand. ’69 Older Caribbean bills of rights arc far from being lucid and easily intelligible. They are marked by what James Read called “a lack of fit” and discrepancies, such as those noted between the broad opening section guar­ anteeing rights and the dozen or so provisions that follow thereafter detailing these rights."70 In interpreting the general savings law clauses, courts are not deducing manifest intention, they are sorting through contradictory elements in the constitutions.271 Simeon McIntosh calls for the general saving clause to be read in the context of “of some articulated political theory that gives coherence to the Constitution and to the constitutional order as a whole”.272 In general, courts turn to strongly normative sections of the constitution, like preambles, and the collective experience and wisdom gained from foreign and international law to try to achieve such coherence or “wholeness”, which gives some credence to the minority position in Boyce and Matthew?17, This debate is far from over. This question is yet to be considered by the CCJ and the slim majority of the Privy Council that gave rise to the Boyce and Matthew rulings could tilt the other way. (iii) Jamaica's targeted shut-out provisions 5-025

Jamaica’s reformed constitutional bill of rights, self-styled a “C harter of Fundamental Rights and Freedoms”, includes a variety of changes that simultaneously reform and reinforce the existing provisions relating to the saving of pre-existing law. Reform, such as it was, occurred insofar as the general savings law clause of the independence Constitution was replaced by a more limited version in s. 13(12). Instead of applying indiscriminately to all pre-independence (1962) laws, the new version applies only to three types of laws, namely those relating to sexual offences, obscene publications and offences regarding the life of the unborn.274 The intention of s. 13(12) is plain: to put beyond judicial review controversial laws criminalising buggery, abortion and pornography. These would have become open to contesta­ tion with the recognition of a justiciable right to privacy in 201 1.275 The protected laws must have been in existence “immediately before the com­ mencement of the Charter” in 2011. As a result, the temporal coverage of this clause has expanded dramatically to immunise laws enacted in the 49 years after independence, up to 2011. The Charter gives with one hand, and takes away with the other. In 2011, the Constitution finally guaranteed a right to

2M Tushnct, above. 270 See James S. Read. "Societe United Docks v Government of Mauritius and Desmarais Brothers Ltd. and Ors. v. Government of Mauritius’’ 26 J African L (1982) 177, 178. Sec below para.9 009. 271 Arif Bulkan and Tracy Robinson, '‘Constitutional Comparisons and the Debate about the Interpretation of the Opening Sections of Commonwealth Caribbean Bills of Rights” (unpublished paper, on file with authors, 2013). V2 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Caribbean Law Publishing Co, 2002). pp.253 5. 271 Tracy Robinson, '‘Our Inherent Constitution” in David Berry and Tracy Robinson (eds), t ransitions in Caribbean Law: Law-making. Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing, 2013). pp.248, 267 70. 774 Jam Const s. 13( 12)(a), (b) and (c). m Above, s. 13(3)0).

7. NO JUDTCIAI REVIEW CLAUSES

245

non-discrimination to women.270 However, the discriminatory marital rape provision found in the Sexual Offences Act 2009 cannot be subject to judicial review because it is a law dealing with sexual offences passed before 2011 and is thus shielded from challenge by the new s. 13(12). This clause should be interpreted narrowly because it provides a stringent exception to guaranteed rights.277 Since the clause makes no provision for immunity to continue for post-Charter amendments of the saved laws, the clause should be interpreted restrictively to mean that a pre-Charter law addressing one of these three areas loses the protection offered by s. 13(12) if any amendments are made to the law thereafter.278 A collection of shut-out clauses now applies to punishments and especially the death penalty. The old special savings clause relating to punishments is amplified.279 Its predecessor applied to punishments that were authorised by law prior to 1962, the new s. 13(7) applies to punishments authorised by law prior to 2011. A new clause stipulates that delays between the imposition and execution a sentence of death are not to be held to be unconstitutional,280 reversing Pratt,281 which is simultaneously one of the most pivotal and con­ troversial decisions of Caribbean constitutional law in the past half-century. A third clause reverses Privy Council rulings that established that the prison conditions on death row can amount to inhuman and degrading treatment.282 Entirely new is an exclusionary provision dealing with marriage and inti­ mate relationships.281 First, the clause immunises from a Charter challenge any law that provides that marriage must be between a man and a woman. The immunity extends to relationships that are legally recognised as giving rise to rights and obligations similar to those that apply to married per­ sons.284 This immunity is not simply for laws already in existence, it extends to future laws. More drastically, the legislature is not free to choose to enact laws that would either recognise same sex marriage or relationships in certain contexts. Section 18(2) of the Jamaica Constitution bars such relationships from being contracted in or legally recognised in Jamaica. To do otherwise would require an amendment to the Constitution. These clauses are the antithesis of fundamental rights’ protection, and disrupt the coherence or integrity expected of a fundamental, constitutive instrument.285 Their disabling effect is heightened in that some of these pro­ visions do not merely save old laws, but speak to the future as well. The modified general savings law clause in s. 13(12) covers only a handful of laws dealing with three topics as compared with its predecessor which covered 2/(1 Above, s. 13(3)(i), uses the problematic language of freedom from discrimination on the ground of "being male or female”. See also above para.l 046 and below para.10-017. 277 R v Hughes (2001) 60 W.I.R. 156: [2002] 2 L.R.C. 531 (CA SLU). See above para.3 020. 2VS Sec Watson v R [2004] UKPC 34; (2004) 64 W.I.R. 241; [2005] 1 A.C. 472 (PC Jam). Jam Const s. 13(7). 280 Above s.l3(8)(a). ’S1 Pratt (1993) 43 W.I.R. 340; (1994) 2 A.C. 1 (PC Jam). 2,0 Jam Const s.l3(8)(b). See Lewis v AG (2000) 57 W.I.R. 275; [2001] 2 A.C. 50 (PC Jam). 281 Jam Const s. 18. Above, s. 18(1 )(b). 285 Simeon McIntosh, Fundamental Rights and Democratic Governance (Caribbean Law Publishing Co. 2005), pp.61 81; Arif Bulkan, "The Limits of Constitution (Re)-making in the Commonwealth Caribbean: Towards the ‘Perfect Nation’” (2013) 2:1 Canadian Journal of Human Rights 79.

246

J IJ IMC IA1

IU V I I . W

the- whole corpus of all pre-1962 laws- yet il is more sinister because it targets or disproportionately impacts identifiable persons and groups. Its predeces­ sor provided a blanket immunity for all pre-independence laws ostensibly in order to facilitate an orderly transfer of power. Section 12(12) creates exceptions to the rights regime—and one which was belatedly giving more ample protection to equality and privacy rights that are relevant to women and sexual minorities who historically faced discriminatory treatment under colonial laws and were excluded from the protection of the independence constitution. This neutralises the benefit of a bill of rights and has been rightly described as “profoundly anti-constitutional”.2Kb (c) Special Acts in Trinidad and Tobago 5 026

In Trinidad and Tobago. Parliament is given the power to consciously derogate from the protected fundamental rights and freedoms through Special Acts, which arc laws passed by a special procedure.3X7 Special Acts in Trinidad and Tobago are Acts enacted by both Houses of Parliament by votes of at least three-fifths of all the members of the House.2** The Act must expressly declare that it has effect despite its inconsistency with the guaranteed rights.389 There is a proviso which admits the possibility of judicial review if it is established that the act is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.390 The proviso creates a presumption that the law is constitu­ tional and places the burden on the challenger to prove it is not reasonably justifiable. 8. Political Questions

5-027

Judges exercise restraint in performing their constitutional function of judi­ cial review on constitutional grounds in a variety of ways and have cautiously approached constitutional review on a range of political issues, including macroeconomic policies, national security, foreign policy, electoral politics and regime transformation. There is no clear doctrine of deference by the courts on “political questions”2t,, in the Caribbean, but there have been dis­ tinct moments where courts have sidestepped judicialising “pure or mega

?86 n(.rck O'Brien and Se-Shauna Wlieatlc. ''Post-independence Constitutional Reform in the Commonwealth Caribbean and a New Charter of Fundamental Rights and f reedoms for Jamaica" [2012] PL 682. See below paras 9 027 9 032. 1KR See TT Const s. 13(2). 184 Above, s. 13(1). m Above, s. 13(1). See generally Maurice Finkelstcin, "Judicial Self-Limitation" (1924) 37 Harv L Rev 338; Melville Fuller Weston. "Political Questions" (1925) 37 llarv 1. Rev 296; Louis flenkin, “Is There a ‘Political Question' Doctrine?" (1976) 85 Yale LJ 597; Mark Tushnel, "Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine" (2001) 80 NC L Rev 1203; Luis Fucntes-Rohwer. "Reconsidering the Law of Democracy; Of Political Questions, Prudence, and the Judicial Role" (2006) 47 Wm & Mary L Rev 1899.

8. POLITICAL QUESTIONS

247

politics”.292 On the other hand, in the last decade, there has been growing, though not uniform, willingness to judicially resolve disputes relating to elec­ toral politics and when there appear to be serious blockages in the political process. (a) E c o n o m i c policies

(j.) Narrow interpretation o f property rights Courts exercise weaker forms of judicial review when the economic and national policies of Caribbean governments come under scrutiny. They have been particularly reluctant to hold that such policies interfere with property rights and indeed take a narrow view of the scope of property rights in these contexts.293 Some nationalist leaders regarded protection of property rights as key to attracting foreign investment.294 It has been suggested that strong constitutional protection of property rights can frustrate the type of regula­ tory innovation required to adjust to changing economic and social circum­ stances.295 The tensions are very apparent in what some term “new property” including, pensions and salaries. As seen in King v R,2%courts are indisposed to convert these “labour” interests into property ones when the claims go to the heart of national public policy. Courts leave these matters to resolution on the political plane. Gladwyn Ophelia King, a clerical officer in the public service, and other Barbadian public servants, claimed property rights in a minimum salary after an eight per cent reduction in the salaries of public servants was intro­ duced by legislation in 1991 in an effort to reduce public spending during a recession. The Privy Council held that the salary reduction did not amount to compulsory acquisition of her property without due compensation and that it was within Parliament’s power to make laws for the peace order and good governance of Barbados.297 If anything, the controversy about the wage reduction was resolved politically. The Prime Minister of the day did not survive a vote of no confidence and his party lost the next general elections. In the long run, Barbados was praised for its fiscal discipline and wage cuts during this period, which are thought to have aided its economic development.298 Strong judicial deference on matters of economic policy can go unnoticed 292 Ran Hirschl, “The New Constitution and the Judieialization of Pure Politics Worldwide" (2006) 75 Fordham L Rev 721, 723. 292 Tracy Robinson, “Those Awkward Rights: The Protection of Property in Caribbean Constitutions” (UWI Faculty of Law, Faculty Workshop Series 2008-09. Conversations between the CCJ and the Faculty of Law UWI, Trinidad, November 26, 2008, on file with authors). 294 Charles Parkinson, Bills o f Rights and Decolonization: The Emergence o f Domestic Human Rights Instruments in Britain's Overseas Territories (OUP, 2007), Ch.7. 295 David Schneiderman, “Property Rights and Regulatory Innovation: Comparing Constitutional Cultures” (2006) 4 ICON 371. 296 See e.g. King i' /I (7 (1993) 45 W.I.R. 50, [1994] 1 W.L.R. 1560 (PC Bds); Baird v PSC (2001) 63 W.I.R. 134, [2003] 3 L.R.C. 41 (CA Guy). 297 Bds Const s. 16. 198 Peter Blair Henry and Conrad Miller, “Institutions vs. Policies: A Tale of Two Islands” (2009) 99 Amer Econ Rev 261. However in 1995 the Barbados Constitution was amended to provide that salaries to civil servants cannot be altered to their disadvantage: Bds Const S.112A.

5-028

248

JUDICIAI RHVIHW

because it is realised through technical rules that assume outsize importance in property rights cases about the justiciability of the opening section to the bill of rights, what is property and what is a “taking” and strong invoca­ tions of the “public interest”.299 The longstanding principle that the wider guarantee of fundamental rights in opening sections of constitutional bills of rights is non-justiciable* albeit questionable,100 has formed the founda­ tion for dismissing challenges to economic policies claiming property rights. On this basis, the ECSC Court of Appeal found no merit in the argument of Anguillan property owners whose property had been acquired to facilitate an airport expansion, that the expansion project involved a disproportionate effect on their remaining property rights, including risks of environmental harms.301 The Trinidad and Tobago Constitution makes provision for the right to the “enjoyment of property and the right not to be deprived thereof except by due process of law”, and the Antigua and Barbuda Constitution refers to the enjoyment of property in the opening section to its constitutional bill of rights.302 They are the exception. In the main, Caribbean constitutions guarantee a right against compulsory acquisition of property without due process and compensation, as distinct from a broad right to enjoyment of property. Although somewhat wider protection against deprivation of prop­ erty without compensation can be found in opening sections to many of these bills of rights, it has not been treated as giving rise to enforceable rights.303 In determining if property rights are implicated, courts give wide berth to the “public interest” and state economic policies. Unlike other rights, where the public interest is contemplated as a secondary question once a breach of a right is established,304 it is central in determining if a property right exists in the first place and whether it has been breached. In addition, if the interest claimed belongs to a wide group or the public at large, it will not be regarded as a property right. Thus far the courts are unwilling to see superior interests in what might be a social or public good as amounting to property. The cases suggest that the interest must be unique to the claimant and include the right to exclude others.305 The generous and purposive approach to interpretation has little work to do here. Natalie Campbell-Rodrigues and other residents in the large commuter town of Portmore, which adjoins Kingston, Jamaica, objected to the introduc­ tion of a toll road to Portmore on the ground that it amounted to an unconsti­ tutional interference with their property rights.306 The toll road was part of a major road-expansion project. The government's plan was to demolish the old causeway connecting Kingston to Portmore and replace it with a new toll road 2W Tracy Robinson, “Those Awkward Rights: The Protection of Property in Caribbean Constitutions'’ (UWI Faculty of" Law, Faculty Workshop Series 2008 09. Conversations between the CCJ and the Faculty of Law UWI, Trinidad, November 26. 2008). 3m See below para.9 009. 3(11 AG v IAlice AI 2005 CA 2 (CARILAW) April 4, 2005 (CA Ang). 302 A&B Const s.3(a); TT Const s.4(a). 3113 See Grape Bay Ltd v A G (1999) 57 W.I.R. 62, [2000] 1 L.R.C. 167, [2000] 1 W.L.R. 574 (PC Ber); AG v Lake AI 2005 CA 2 (CARILAW) April 4, 2005 (CA Ang); Campbell-Rodrigues v AG [2007] UKPC 65, [2008] R.V.R. 144. [2008] 4 L.R.C. 526 (PC Jam). 3(14 See below para.9 021. 303 See Larissa Katz, “Exclusion and Exclusivity in Property Law” (2008) 58 UTLJ 275, 278. 306 See David Dodman, “The Creation of Community? Citizen Action. Social Movements. and the Portmore Toll Controversy” (2009) 28 Bulletin of Latin American Research 364.

S. POT ll'lCAL QUESTIONS

249

financed by investors. An alternative but longer and less satisfactory route on Mandela Highway would be available for Portmore residents into the city. In Campbell-Rodrigues v A G ,m the Privy Council rejected the residents’ claim that access to their property without economic burden was a property right. Because the public in general had a right to use the highway, the appellants were unable to formulate this access as a right that was unique to them, which the court regarded as essential for a property right. More generally, the Privy Council concluded that the residents were entitled to not have their prop­ erty compulsorily acquired without compensation but that they did not enjoy a broader right to enjoyment of their property. “Acquisition” was defined broadly as a “taking” and included direct appropriation as well as regulation that adversely affected use of the property. However, regulation in the public interest that may have an adverse economic impact on property owners was held to fall outside the definition of “taking”. A new six-lane toll road provid­ ing an improved road, addressing traffic congestion and apportioning the eco­ nomic burden of the road primarily on the users rather than the entire society lay outside the purview of constitutional scrutiny because its public “good” negated the claim that property was taken. The public interest also loomed large in AG v Caterpillar Americas Co.108 The Court of Appeal of Guyana accepted that an initiative to revive the ailing bauxite industry by transferring the business of a state owned company, Guymine, to two newly-formed companies and to replace the business debts owed by Guymine by 12-year interest bearing bonds which were guaranteed by the government was constitutionally permitted. Caterpillar Americas Co was owed nearly US $1 million by Guymine and claimed that the govern­ ment’s actions amounted to a deprivation of their property in violation of the Guyana Constitution.109 The majority applied the doctrine of eminent domain as an essential attribute of sovereignty that gave the state legal authority to acquire the private property of a citizen for public purposes, without a need for further constitutional authorisation. Kennard C said that when the government converted the debts of bauxite company, Guymine, into bonds redeemable in the future it was acting “with the best of intentions in order to save the bauxite industry with the assistance of financial support from abroad”.310 He noted frankly that: “ The economy of the country depended on the bauxite industry, and a large section of the community depended upon it for its existence and sur viv al .” 311

Kennard C also added that the creditors had little hope of recovering the debt owing to them and the payment on the debt had merely been postponed by the conversion.

-w Cam/Ml-Rodrigues v AG [2007] UKPC 65; [2008] R.V.R. 144; [2008] 4 L.R.C. 526 (PC Jam). 3,m AG v Caterpillar Americas Co (2000) 62 W.I.R. 135; [2003] 3 L.R.C. 1 (CA Guy). 11111 Guy Const arts.40, 142. 1|n AG v Caterpillar Americas Co (2000) 62 W.I.R. 135 at 146; [2003] 3 L.R.C. 1 (CA Guy) at 13. 1,1 Caterpillar Americas Co, above.

250

JIJOIC IAI R1 Vil'.W

(ii) "Pure" questions o f public policy and economic “necessity" 5 029

In Grape Bay Ltd v A G f 2 the Privy Council was very explicit that certain matters of national public policy are not for the courts to decide. Grape Bay Ltd was established in Bermuda to set up the McDonalds franchise. There was strong opposition to the move on the ground of the possible loss of the island’s unique identity and the Prohibited Restaurants Act 1997 was enacted which restricted the operation of restaurants which had an affiliation with restaurants outside Bermuda. Grape Bay Ltd argued that the arrange­ ments it made to set up the franchise amounted to choses in action that had become worthless with the introduction of the law. The Privy Council char­ acterised the Bermudan legislation prohibiting the establishment of foreign franchise restaurants as presenting a “pure question of policy, raising no issue of human rights of fundamental principle”, to be decided by the government and not judges.313 It said that the legislature should be given a very wide margin of appreciation in deciding what is in the public interest, and it was for Bermudians to know what was in the public interest. The first instance judge examined the recommendations of a review committee that looked at the prohibition of foreign restaurants. He concluded that the legislation went further than necessary to meet any legitimate state goal and that it failed to provide any benefits to the community. Lord Hoffmann dismissed this finding as overreaching. He said the unique identity of Bermuda, which the legislation was intended to protect, was a “somewhat intangible concept”, and that these were “pre-eminently matters for democratic decision” by the legislature.314 The crux in the Grape Bay case was the absence of a prima facie breach of property rights, having dismissed the argument that the wider protection for property rights found in the opening section to the Bermuda Constitution was justiciable. The Privy Council concluded that Grape Bay Ltd had not been deprived of any existing business and owned no land affected by the restriction. It had no right, unique to it, to set up a franchise. The agreements it had made or choses in action it claimed were valuable only in connection with a freedom that was not unique to them, that of opening a restaurant. Without a breach of a fundamental right established, the disproportionality of the law was moot. Proportionality was a subordinate rule, not a fundamental right.315 The large debt burden of many Anglophone Caribbean countries has stunted social and economic development. The toll road in Jamaica was part of a large infrastructural project in Jamaica for developing the major transportation networks through large-scale investment rather than national debt. By determining that no property rights are infringed, courts avoid the complex questions of whether these measures could be justified having regard to available evidence.316 The courts are loathe to question these types JP Grape Bay Ltd v AG(1999) 57 W.I.R. 62 at 75; [2000] 1 L.R.C. 167 (PC Her) at 179 80. 313 Grape Bay Ltd, above. 114 Grape Bay Ltd, above. 315 See AG v Lake AI 2005 CA 2(CARILAW) April4, 2005 (CA Ang) al [48], 316 See Sandria Tennant and Anlhony Clayton.“The Politics of Infrastructural Projects: A Case for Evidence-Based Policymaking” (2010) 33 Int’l J Pub Admin 182. The authors argue the decision to introduce toll roads in Jamaica was based in part on political grounds and was made without strong supporting evidence for its viability and benefit.

8. p o l it ic a l

q ukshons

251

of projects or initiatives that go to the heart of macroeconomic policies in the Caribbean’s high-debt economies. 1’hey reflect policy decisions taken by the executive, though these are often made within the tight space of recommen­ dations and conditions imposed by international financial and development institutions in agreements with Caribbean countries. Judicial deference is engendered by the Caribbean political economy. In AG v Caterpillar Americas Cu,317 Churaman JA strongly disagreed with the application of eminent domain and said that this principle had no place in Guyana’s legal system. He worried that the criterion of public purposes could be manipulated to justify deprivations of property. He preferred to resolve the case with reference to the constitutional right against compulsory acquisi­ tion of property except by due process and with adequate compensation.318 He concluded that even if the conversion of the debt to bonds deprived Caterpillar of its property, the deprivation was not substantial enough to reach the threshold of a constitutional violation. While rejecting eminent domain, he was also willing to take the intention of the government into account in arriving at this conclusion. He said the government had reason­ ably formed the view that Guymine was “hopelessly insolvent” despite efforts to save it.319 He added that the government could no longer do so given its own precarious financial situation. He recounted that the government had approached international financial institutions and was following their advice on the bauxite industry. He said that if Guymine was liquidated because it could not pay its debts, “social harm would befall many communities, and its creditors would recover little”.3211 In the few instances where courts have found a breach of a guaranteed right by core national public policies, they have exercised restraint in determin­ ing the proportionality of the measures. In Cable and Wireless (Dominica) Ltd v Marpin™ the Privy Council held that the grant of an exclusive tel­ ecommunications licence to Cable and Wireless (Dominica) Ltd amounted to a prima facie breach of the freedom of expression of Marpin, a company that wanted to provide similar telecommunications services in Dominica, l he Court of Appeal had rejected the possibility that the exclusive licence given by the government to Cable and Wireless (Dominica) Ltd to provide telecommunications services in Dominica was reasonably required to protect the public interest because it concluded that the state was motivated primar­ ily by economic benefit in granting the licence.322 The Privy Council said this was an “over-circumscribed approach” since public benefit and financial gain could coexist. It remitted the case back to the local courts for re-evaluation of whether the exclusive licence was justified in the public interest. It was not enough to show that the state had determined that the measures limiting freedom of expression related to economic policies that could be attributed to the public interest. Nevertheless, the Privy Council refused to rule out the Jl AG v Caterpillar Americas’ Co (2000) 62 W.I.R. 135: [2003] 3 L.R.C. 1(CA Guy). 1|K Guy Const art. 142. ,|g AC v Caterpillar Americas Co (2000) 62 W.I.R. 135 at 169; [2003] 3 L.R.C. 1 (CA Guy) «it 34. Cuterpillar Americas Co. above. Cable ami Wireless (Dominica) Ltd v Marpin (2000) 57 W.I.R. 141; [2001] 1 W.L.R. 1123 (PC Dom). ( able and Wireless ( Dominica) Ltd v Marpin (2000) 57 W.I.R. 141 (PC Dom) at 152.

252

JUDICIAL REVIEW

possibility a monopoly might be reasonably required to protect the rights and freedoms of others because it enabled the provision of communications services to the community as a whole. In both Grape Bay and Marpin, the Privy Council invoked the beleaguered doctrine of margin of appreciation, borrowed from European human rights law.323 It has defied coherent articu­ lation and application in the European system and the terminology is best avoided in Caribbean constitutional law. The doctrine is little more than a signal that the court intends to exercise deference to the executive and legisla­ ture in evaluating proportionality while offering no guidance on the rationale for or extent of the deference. (iii) Economic development and the collective rights o f indigenous peoples 5 030

The incipient battleground over property rights and national economic policies in the Caribbean involves indigenous peoples who occupy lands in Belize and Guyana, or who are in close proximity to lands that are desired or being used for forestry or extractive industries.324 The possibility of indigenous claims to land and resources “is a prospect with worrisome economic implications” for Caribbean states.325 In Belize, governments issued logging concessions in the Southern Toledo district without the consent of its indigenous occupants and they have had damaging effects on the environment and the lives of the indigenous peoples living there.326 In the breakthrough case of Col v A G,327 Conteh CJ recognised the collective land rights of Maya communities in Southern Toledo based on customary land tenure and held that such property rights fell within the protection of property guaranteed by the Belize Constitution. The state was ordered to demarcate and title the claimant villages in accordance with customary laws and practice, which is yet to take place. Notwithstanding the progres­ sive stance in Cal, there has been some judicial diffidence in countermand­ ing economic policies that interfere with indigenous rights.328 The test will come in future cases litigating the new constitutional rights for indigenous peoples.329

123 See Handyside v C/AT(1976) Series A No 24 (1976) 1 E.H.R.R. 737; [1976] ECHR 5493/72 (ECtHR). See George Letsas, “Two Concepts of the Margin of Appreciation” (2006) 26 (4) OJLS 705. 324 Arif Bulkan, “From Instrument of Empire to Vehicle for Change: The Potential of Emerging International Standards for Indigenous Peoples of the Commonwealth Caribbean” (2011) CLB 463. 325 Arif Bulkan “ Disentangling the Sources and Nature of Indigenous Rights: A Critical Examination of Common Law Jurisprudence” (2012) 6 1 ICLQ 823, 850. 326 James Anaya, “Maya Aboriginal Land and Resource Rights and the Conflict over Logging in Southern Belize” (1998) 1 Yale Hum Rts & Dev LJ 17. 327 Cal v AG (2007) 71 W.I.R. 110 (SC Bze). 328 Thomas v AG Unreported April 30, 2009 (HC Guy). See Arif Bulkan, “From Instrument of Empire to Vehicle for Change: The Potential of Emerging International Standards for Indigenous Peoples of the Commonwealth Caribbean” (2011) CLB 463. 329 See above para.l 047.

8. POLITICAL QUI S'IIONS

253

(b) Elec tor al a n d p a r l i a m e n t a r y politics

(i) Election disputes Caribbean courts are designated arbiters over disputes about election results and membership in Parliament. In this respect, the courts exercise strong judicial review and have become central institutions in electoral and parlia­ mentary politics.3WCourts have enforced the constitutional disqualification to serve in the legislature if the candidate holds allegiance to a foreign power. Lawful permanent residence of a foreign country does not constitute an acknowledgment of allegiance, obedience or adherence to that country.331 Mere possession of a foreign passport by an adult who has renewed that pass­ port and travelled on it constitutes strong evidence to indicate that allegiance is owed to a foreign power and, in such circumstances, one is disqualified from being eligible for election as a representative.332 If the electors were made fully aware of the facts that created the disqualification but neverthe­ less voted for the disqualified candidate then their votes are deemed to have been wasted and the court will award the seat to the next valid candidate at the polls.333 But before making a finding that electors had thrown away their votes the court must be satisfied that the notice to the electors was “clear, definite and certain”.334

5 031

(ii) Political disputes on self-monitoring constitutional provisions Outside these election cases, courts generally exercise deference to the politi­ cal processes. They justify weak judicial review on political questions in terms of the separation of powers doctrine. They have declined to become involved in reviewing the discretion given to Prime Ministers under Caribbean con­ stitutions to decide when elections are called.335 In Bobb v Manning,336 two voters sought judicial review against the Prime Minister, Patrick Manning, on the basis that he retained his power unconstitutionally. Manning had been appointed Prime Minister by the President after the 2001 general elections in which his party and the incumbent United National Congress (UNC) received an equal number of seats in the House of Assembly, prompting a constitutional crisis and deadlock in Parliament. The voters focussed on the 1311 See Cynthia Barrow-Giles, "Democracy at Work: A Comparative Study of the Caribbean State" (2011) 100 Roundtable 285. See also Peters v /IG(2001) 62 W.I.R. 244 (CA TT); Spencer v Smith Unreported June 23, 2003 (HC A&B); Dahdouh v Vaz (2009) 75 W.I.R. 357 (CA Jam); Quinn-Leandro v Janus (2010) 78 W.I.R. 216 (CA A&B); Joseph i' Skerritt Unreported January 19. 2012 (HC Dom); Hewitt i’ AG Unreported August 9, 2013 (GC Cl). 3,1 / ihnrd v Hamilton Unreported December 5. 2011 (CA SKN). 133 See Sykes v Cleary (No. 2) (1992) 176 CLR 77 (HC Aus); Dahdouh v Vaz (2009) 75 W.I.R. 357 (CA Jam); Spencer i' Smith Unrcported June 23, 2003 (HC A&B); Abraham v Darroaux DM 2010 HC 12 (CARILAW) August 28, 2010 (HC Dom). 333 Sec Peiris v Perera (1969) 72 New Law Reports 232 (Cey); Nedd v Simon (1972) 19 W.I.R. 347 (CA Gren); Mollison v Jiinor (1977) 15 JLR 194 (SC Jam); Dahdouh v Vaz (2009) 75 W.I.R. 357 (CA Jam); Green v Saint Jean DM 2013 CA 1 (CARILAW) March 11. 2013 (CA Dom). 334 Sec Dahdouh v Vaz, above; Muttison vJunor, above. 335 Francois v Compton LC 2003 CA 2 (CARILAW) June 18,2003 (CA SLU); Bobb r Manning [2006] UKPC 22, [2006] 4 L.R.C. 735 (PC TT). 336 Bohh v Manning, above.

5-032

2 54

JUDICIAL RFVIhW

Prime Minister’s statement in an address to CARICOM, regarding when general elections would have to be called if the crisis was not resolved. The Privy Council refused to grant their request for a declaration that the Prime Minister’s statement was unreasonable and illegal, and an order directing the Prime Minister to cause elections to be held before a certain date, affirm­ ing the rulings of the High Court and Court of Appeal. At first instance, Mohammed J said that these matters pre-eminently involved political policy and strategy, which were non-justiciable, and that “the court would be making an unwarranted incursion into the purely political jurisdiction of the Prime Minister and the Executive, and thereby violate the principle of the separation of powers, were it to accede to the granting of the reliefs sought.”337 Where constitutional provisions on political matters can be regarded as self­ monitoring, courts show the greatest reluctance to intervene.338 Courts are not well suited to resolving all disputes about compliance with the constitutions and tend to exercise weak form judicial review in relation to constitutional provisions for which the political branch can better supervise compliance.339 In Bobb v Manning,340 the Privy Council recognised that even at times where judicial remedies were not appropriate, the government was open to public, media and general political scrutiny and challenge.341 A vote of no-confidence is a mechanism that can be used by the legislature to supervise compliance of the Plead of State with his constitutional duty to appoint as Prime Minister a person who enjoys the support of the majority of elected parliamentarians.34'’ This was one reason given by Floissac CJ for refusing to inquire into the Governor General’s selection of a Prime Minister in St. Kitts-Nevis after general elections which produced a hung Parliament. The Court of Appeal was equally averse to examining the process for the selection of the President of Dominica in Prime Minister v John.343 The Speaker of the House of Assembly issued a certificate certifying that the President had been duly elected in accordance with the provisions of the Dominica Constitution. On the date on which the House of Assembly voted, no members of the opposition were present and they provided no excuse for their absence to the Speaker of the House. The nub of the com­ plaint brought by the Leader of the Opposition was that the Prime Minister failed to consult with him as required by the Constitution. Section 19 of the Dominica Constitution states that if the office of the President is vacant or due to expire, the Prime Minister should consult with the Leader of the 137 Re Office of Prime Minister TT 2002 HC 115 (CARILAW) August 27, 2002 (HC TT) at 5 6. 338 Louis Henkin, “Is there a 'Political Question’ Doctrine?” (1976) 85 Yale LJ 597, 622. 339 Henkin, above; see also M ark Tushnet, “Law and Prudence in the Law of Justifiability: The Transformation and Disappearance of the Political Question Doctrine” (2002) 80 NC L Rev 1203, 1207 08. 340 Bobb v Manning [2006] UKPC 22; [2006] 4 L.R.C. 735 (PC TT). 341 Bobb, above, at [17]. See also Lloyd Barnett, The Constitutional Law oj Jamaica (OUP, 1977), p. 175. 342 Re Blake (1994) 47 W .I.R. 174 (CA SKN) applied in Prime Minister v John (2014) 83 W.I.R. 370 (CA Dom). 343 Prime Minister v John, above.

x.

poi

r r ic A i.

q u r s '1 i o n s

255

Opposition on making a joint nomination of a candidate for President.344 Where the two politicians so nominate a President, there is no need for an election by the House of Assembly.345 If they do not agree on a nominee, there must be a parliamentary process to elect the President.346 The Prime Minister consulted the Leader of the Opposition in circumstances where the office of the President was not vacant, nor was it due to expire, but the President was known to be in ill health and contemplating resigning. Pereira CJ refused to go behind the Speaker’s certificate. The Constitution provided that the certificate was conclusive evidence that the election was in accordance with s. 19 and that the veracity of the certificate should not be questioned in any court of law.347 The Chief Justice agreed that there was a political remedy open to the Leader of the Opposition- to come to the House of Assembly and voice his objection to the Prime Minister’s nominee. For Pereira CJ, the doctrine of separation of powers was relevant; the election of the President was a parliamentary process in which the court had very limited jurisdiction. In Christie v Ingraham,™ Hall CJ drew a sharp line between legal constitu­ tional questions and political constitutional ones. When a court crosses this line he said “it is in a different division of the protean political landscape, an environ­ ment where rules different from those of the courtroom operate, a terrain which few judges have the survival skills to traverse and, even where they do, they cease to function as judicial officers.”349 The Chief Justice faced a dilemma in a case which was pre-eminently a politi­ cal dispute. As discussed earlier,350 the Bahamas Constitution provides for a Senate comprised of 16 members. Nine (56.25 per cent) are to be appointed by the Governor General on the advice of the Prime Minister, and four on the advice of the Leader of the Opposition. Article 39(4) provided that the remaining three senators are to be appointed by the Governor General acting on the advice of the Prime Minister, after the latter has consulted the Leader of the Opposition. Article 40 states; “In the exercise of the functions conferred upon him by Article 39(4) of this Constitution, the purpose of the Prime Minister shall be to secure that the political balance of the Senate reflects that of the House of Assembly at the time.” In the 2007 general elections, the Free National Movement secured 23 of the 41 scats (56.1 per cent). The opposition won 18 seats (43.9 per cent). The government’s nine senators approximated the proportion of seats they held in the House of Assembly. The Leader of the Opposition proposed that the 344 145 •m ,4’ 148 34y ■ b"

Dom Const s. I 9( 1). Above, s. 19(2). Above, s. 19(3). Above, s.22(5). Christie v Ingraham (2008) 7 4 W.I.R. 1 (SC Bah). Christie, above, at [44], Sec above para.3 012.

5 033

256

JUDICIAL RFV1I W

Prime Minister put forward persons he recommended for the remaining three senatorial offices to achieve the balance that existed in the lower I louse. The Prime Minister did not agree and nominated two persons with no affiliation with the opposition. The Leader of the Opposition sought a declaration that these appointments were made in breach of art.40. The Chief Justice accepted that the appointment by the Prime Minister of senators generally “was a purely political exercise” in which the court should not interfere.151 He thought that he could not avoid dealing with this matter because the Bahamas Constitution provides that the Supreme Court had jurisdiction to hear and determine questions as to whether a person was validly appointed a senator.352 The Chief Justice concluded that “political balance” in art.40 was a mandatory requirement but it was not synonymous with membership in a political party. It meant that the three senatorial appointments should be made to “persons philosophically disposed” to the opposition party.351 This did not mean that the Prime Minister had to appoint persons recom­ mended by the Leader of the Opposition, but his or her decision must not be unreasonable or capricious. The Prime Minister was presumed to have acted reasonably and the burden rested on the opposition leader to prove otherwise. This burden of proving unreasonableness was met in relation to one of the appointments, someone who was an activist for the government party, but not the other appointment, which was of someone viewed as politi­ cally neutral. Christie v Ingraham tested the limits of judicial competence. Hall CJ tried his best, as he put it, to “navigate a path to a legal solution while avoiding the shoals and shallows of partisan perspectives”354 but it was an unmanage­ able undertaking. The Bahamas chose, as counsel for the respondent argued, a political approach to the appointment of the three senators, placing this process in the hands of the Prime Minister. The three senators do not enjoy security of tenure. The Prime Minister has the power to advise the Governor General to remove them having consulted the Leader of the Opposition.355 Without security of tenure, Francis Alexis thus concluded that if these three senators “rebel against a constitutional amendment backed by the Government they are likely to be made to give way to others who are thought to be disposed to voting for the amendment”.356 Article 39(4) prescribed the method of appointment and art.45- -the right of the Supreme Court to determine if the appointment is validly made— correctly attaches to this section. The Chief Justice erred in seeking to put art.40- dealing with the purpose of the appointment- -within the realm of legal principles that are readily enforceable. Having done so, Hall CJ struggled to provide a meaning for the term “political balance” that was not 3,1 Christie v Ingraham (2008) 74 W.I.R. 1 (SC Bah) at [42], 352 Bah Const art.45(l)(a). 353 Christie v Ingraham (2008) 74 W.I.R. 1 (SC Bah) at [51]. 354 Christie, above, at [50] (emphasis in original). 355 Bah Const art.43(l)(g). 356 Francis Alexis. Changing Caribbean Constitutions (Caribbean Research and Publications Ltd, 1987), p.29.

8. POIITICAI. QUESTIONS

257

limited to political party affiliation and he wrestled to define the role of the Leader of the Opposition under art.40, having rejected the claim that he had a veto power over appointments. The Chief Justice found himself caught in “a terrain which few judges have the survival skills to traverse”. (iii) Political blockages that impair democracy Courts might be more inclined to intervene when faced with blockages giving rise to blind spots in the political processes that severely undermine inclusiveness in a deliberative democracy.357 The case of Sharma v AG358 is better understood as such an instance. The constitutional impasse arising from the two major political parties realising an equal number of seats in the lower House of Parliament after the 2001 elections in Trinidad and Tobago resulted in the members of Parliament not being sworn in and not paid. The govern­ ment members of Parliament were almost all elevated to Cabinet ministers, producing a disproportionately harsh outcome for the opposition representa­ tives. This could be, and was later, resolved by establishing an uneven number of parliamentary seats to avoid the risk of 18:18 seat split in the future. The Privy Council addressed the inequity produced by this “unintended contin­ gency” by determining that parliamentarians had a right to a salary and that this was earned not merely for performance of duties in the House but also as compensation for serving the interests of their constituents in an advisory capacity, and by way of representations to ministers and public authorities. In close political contests, courts have taken varying positions, though increasingly ones of intervention. In Brantley v Martin.359 the Leader of the Opposition in St. Kitts-Nevis filed a motion of no confidence in the govern­ ment which the Speaker refused to place on the order paper to be debated and voted on in Parliament. The High Court refused an application to dismiss a challenge brought to compel the Speaker to act. The court acknowledged that parliamentary privileges must be respected, but noted that if the Speaker has acted or failed to act consistently with the Constitution then it had no choice but to intervene and declare accordingly. In this case, the court implied from the text, structure and context of the Constitution a substantive and procedural right in every member to request that a motion of no confi­ dence be placed before the Assembly in priority over other business, to be debated and voted on within a reasonable time. Since the Speaker in this case had consistently failed to place the opposition’s motion on the order paper for debate, the court refused his summary application to dismiss the action. For the first time in Guyana’s history, a minority government was elected in 2011, an occurrence only possible under the 1980 hybrid constitution that forbids post-election coalitions. At the first post-election sitting for approval of the budget, the combined opposition reduced the finance minister’s esti­ mates of spending in relation to at least 10 items. On a challenge brought by the Attorney General, the acting Chief Justice held that the power of the National Assembly to approve estimates of expenditure under art.218 of 357 Rosalind Dixon, “Creating Dialogue about Socioeconomic Rights: Strong-form versus Weak-form Judicial Review Revisited” (2007) 5 ICON 391,402. 3,8 Sharma v AG [2007] UKPC 41; (2007) 70 W.I.R. 287 (PC TT). See above para.3-006. 35y Brantley v Martin ( Speaker of the NA ) Unreported February 12, 2014 (HC SKN).

5 034

258

5-035

JUDICIAL REVIEW

the Constitution did not entitle it to reduce or increase those estimates.360 The court reasoned that if the Assembly were to make cuts, the amended estimates would cease to be those of the Minister and become that of the Assembly, making its power to approve otiose. According to the acting Chief Justice, the Assembly cannot function both as the “fixer” of estimates and “approver” of estimates at the same time, and he granted a declaration that the Assembly had acted unlawfully in purporting to reduce the estimates for the 2012 financial year. The court emphasised that the power of the National Assembly is limited to giving or withholding its approval for the Minister’s estimates when these are laid in Parliament. In answer to submissions regard­ ing improper interference with the internal operations of Parliament in breach of the separation of powers, the acting Chief Justice asserted that “it is trite law that the Court does have a supervisory jurisdiction over the Assembly” in instances where it might act unconstitutionally or unlawfully.361 The central plank of Chang CJ’s (Ag) decision in AG v Trotman362 is that the power of the National Assembly to “approve” the minister’s estimates does not include the Ipower to reduce them—it therefore involves an all or nothing exercise. The acting Chief Justice added that were the Assembly to be allowed to reduce estimates, their power to approve them under art.218 of the Constitution would be rendered otiose.363This conclusion is far from obvious, since the plain meaning of “approve” can include a power to approve the whole or a part. The power to grant partial approval inevitably means that the National Assembly can reduce the estimates to the part approved. Chang CJ (Ag) turned to art.l71(2)(a)(ii) to support this conclusion, insofar as that pro­ vision requires the consent of Cabinet to proceed on any bill which imposes a charge on the consolidated fund. In his view, Cabinet would not consent to the tabling of an appropriation bill which contains- - not the estimates of the exec­ utive government- -but in reality those of the National Assembly as amended, as this would involve Cabinet approving the Assembly’s bill, rather than the other way around.364 This is not entirely persuasive. This conclusion relies on a purely procedural provision governing the introduction of bills for debate and passage in order to give meaning to a substantive power in the National Assembly to approve a minister’s estimates. Furthermore, in the context of this case, the bill in question had already been introduced with the consent of Cabinet, thus satisfying art.l71(2)(a)(ii). In difficult cases involving clashes between the executive and legislative branches, one way forward is for the court to see its role as that of giving meaning to the constitution “in ways which are consistent with its underly­ ing purposes and are not detrimental to effective government.”365 The key to this case is an examination of the role of the Parliament in the system of governance. The National Assembly is not a mere rubber stamp of execu­ tive policies. It has an august role as a body of the people’s representatives

360 AG v Trotman (Speaker o f National Assembly) Unreported January 20, 2014 (HC Guy). 361 Trotman (Speaker o f National Assembly), above, at 17. 362 AG v Trotman Unreported January 29,2014 (HC Guy) at 19. 363 Trotman, above, at 13-14. 364 Trotman, above, at 15. 365 Executive Council o f the Western Cape Legislature v President o f the Republic of South Africa 1995 (4) SA 877 (CC SA); (1995) SACLR 274 (CC SA) at [99],

9. STRONG-FORM JU niCIAL RhVIFW. IN PRINt IPI b

259

who debate, argue and adjust the proposals presented to them. The Guyana Constitution provides that “sovereignty belongs to the people who exer­ cise it through their representatives and the democratic organs” established by the Constitution.366 The legislative process routinely involves changes to bills, whether at a committee stage or during debate in the House at a full sitting.367 The CCJ has remarked that the constitution attaches “extraor­ dinary value . . . to Money Bills”, which in the context of that case meant that there should be safeguards to pre-empt “arbitrary, capricious or illegal conduct”.368 It is difficult to imagine a function more integrally connected to sound governance and the rule of law than scrupulous financial management and close scrutiny of proposed government expenditure.369 There is always a risk of gridlock where there is a minority executive, and that calls for politi­ cal maturity and compromise, which regrettably there is a dearth of in the Anglophone Caribbean. But it should not warrant a negation of the powers of the Parliament in a democracy. 9. Strong-Form Judicial Review, in Principle

The powers of Caribbean superior courts to invalidate laws and actions inconsistent with the constitution resemble what has been termed “strongform” judicial review.370 Mark Tushnet describes this form of judicial review as a context in which the “courts have the final and unrevisable word on what the Constitution means, with legislatures and executive officials having no substantial role in informing the court’s constitutional interpretations” -at least in the short-term.371 The Caribbean model is nuanced because these constitutions are littered with limits on judicial review, particularly the copious limitations and pro­ visos to guaranteed rights and ouster clauses. The textual encumbrances are accentuated by a culture of judicial self-restraint.372 The death penalty litigation is emblematic of strong-form judicial review in light of the radical policy changes that the judiciary initiated, which have remained in place in 'ft'’ Guy Const art.9. Hilaire Harnett, Constitutional and Administrative Law, 9th edn (Routledge. 2011), pp.311 14. ** BCB Holdings Ltd r AG [2013] CCJ 5 (AJ); (2013) 82 W.I.R. 167 (CCJ B/e) at [46] per Saunders J. ■ 16v Guyana has been ranked the most corrupt in the Anglophone Caribbean for successive years by Transparency International. See Stabrock News, "Guyana slips further on Transparency’s Corruption Index" (December 3. 2013) Stabroek News http:lhvww.stabroeknews.coinl2()l3lnewsl stories/12K)31guyana-slips-transparencys-corruption-iiulexl [Accessed February 25, 2015], ’7" Cayman Islands contemplates a weaker form of judicial review when its constitution authorises declarations of incompatibility rather than invalidity in relation to breaches of the guaranteed rights (Cl Const s.23). 171 Mark Tushnet, "Weak-F'orm Judicial Review and ‘Core’ Civil Liberties" (2006) 41 Harv CRC L Law Rev 1, 1. See also Jeremy Waldron, “The Core of the Case against Judicial Review" (2006) 115 Yale LJ 1346, 1354 55. m See above paras 3 029 3 033.

5-036

260

J I J D U ' I A l R I VI I W

most of the Caribbean in the face of executive inertia.-173 Nevertheless, there are signs of a weaker-form of judicial review in some places. 1 rinidad and Tobago’s broadly stated rights co-exist in a Constitution where the legisla­ ture is given the last word in special situations of proposed socioeconomic reform, paradoxically resulting in a weaker-form judicial review. Aspects of the Privy Council’s 1993 ruling that excessive delays in carrying out the death penalty amount to inhuman and degrading punishment174 and later rulings on the death penalty have already been repudiated in constitutional reforms in Barbados and Jamaica.375 But, to the extent that legislatures remain “inef­ fective”, whether because of paralysing partisan divides376 or fears of back­ lash at the polls, the supermajorities and referenda required for constitutional reforms to reverse judicial decisions will remain difficult to attain, leaving the judiciary a decisive determinant on social, economic or cultural issues of controversy.377

373 Laurence Heifer, “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes'’ (2002) 102 Columbia I. Rev 1832. 174 Pratt i- AG (1993) 43 W.I.R. 340; (1994) 2 A.C. 1 (PC Jam). 375 Bds Const s. 15(3); Jam Const s. 13(7). 376 David Hinds, “ Beyond Formal Democracy: The Discourse on Democracy and Governance in the Anglophone Caribbean” (2008) 46 Commonwealth and Comparative Politics 388. 377 See below paras 10 004 10 005.

CHAPTER 6 THE RULE OF LAW

1. Elements of the Rule of Law

(a) Imprecise but widely acknowledged The rule of law represents a standard that is “universally accepted” 1 or a “supra-national concept”,2 and yet what it means is often disputed. Professor A.V. Dicey is credited with the term. For Dicey the rule of law meant three things. First “that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the law.”3 Second was his principle of legal equality; “that no man is above the law . . . whatever his rank or condition”.4 Third, he had an understanding of the rule of law “as a special attribute of English institutions.”5 Dicey had disdain for the protection of fundamental rights through constitutional provisions and believed in the superiority of ordinary courts. For him, the protection of civil liberties through the gradual development of judge-made law when private citizens bring cases before the court was a hallmark of the rule of law. Dicey’s third principle has not stood the test of time, given the now ubiquitous and undeniably valuable constitutional protection of human rights across the globe. A common criticism is that the rule of law is invoked “promiscu­ ously” today,6 as “magic words” to support just about any claim relating to law, democracy, human rights and good governance.7 In international development policy and programmes it has had a “glossy appeal”.8 The debates about its overuse match tensions between those who favour formal 1 Thomas v Baptiste (1998) 54 W.I.R. 387 at 421; [2000] 2 A.C. 1 (PC TT) at 22 per Lord Millctt. 2 Hugh Rawlins, “The Rule of Law and Good Governance: A Constitutional “Conclusive Evidence’ Clause and Re Aubrey N orton” (1998) Carib LR 116, 118. 3 A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn (MacMillan, 1959). p. 188. 4 Dicey, above, p. 193. 5 Dicey, above, p. 195. 6 Joseph Raz, “The Rule of Law and its Virtue” [1977] 93 LQR 195,196. 7 Jeremy Waldron, “Is the Rule of Law an Essentially Contested Concept (in Florida)?” (2002)21 Law & Phil 137. s Fionnuala Aolain and Michael Hamilton, “Gender and the Rule of Law in Transitional Societies” (2009) 18 Minn J Inti L 380. 389.

6-001

262

1 HI K ill i- 01 I AW

or “thin” understandings in contrast with substantive or “thick” interpreta­ tions. By overstating and enlarging its scope and importance to encompass too many social goods, formalists argue that the concept is made indeter­ minate and less valuable.9 The concept has been gaining in importance in modern Caribbean constitutional law, and has been translated into concrete and justiciable legal rules, though it has longer colonial roots.10 (b) Multilayered: Restraint and protection 6 002

The rule of law is a “multi-layered” concept that takes account of concomi­ tant restraint on state action and protection for citizens." The organs of the state and all persons within the state must be governed and constrained in their actions by existing laws.12 The core idea in Caribbean constitu­ tional law that is associated with the rule of law is that of constraining state action to ensure state accountability;13 “those exercising public power should do so lawfully” and in accordance with the constitution and other relevant laws.14 The rule of law operates by restraining the exercise of arbitrary power and applying principles of rationality and fairness.15 On the other side, all citizens are entitled to the benefit and protection of the laws properly made.16 Wit J in AG v Joseph explains that “[t]he law cannot rule if it cannot protect, so there must be protection against abuse and arbitrary exercise of power”.17 That protection includes the creation of positive laws that restrict the free use of violence, including violence by non-state actors.18 (c) Formal and substantive conceptions

6-003

Positivist or formal conceptions of the rule oflaw locus on how law is made and applied. They do more than say that state actions should be authorised by law. Formal conceptions of the rule of law also insist on the application of certain relevant principles: that laws should be clear and certain, acces9 Joseph Raz. “The Rule of Law and its Virtue” [1977] 93 LQR 195, 202, 208, 211. 111 See above para.l 043. See also R.W. Kostal, A Jurisprudence of Power: Victorian Umpire and the Ride of Law (OUP, 2005): John Reynolds, "The Long Shadow of Colonialism: The Origins of the Doctrine of Emergency in International Human Rights Law” (Osgoodc Hall Law School Comparative Research in Law & Political Economy Research Paper Series. Research Paper No. 19/2010) available at http.J/digitalcommons.osgoode.yorku.calclpclSO [Accessed February 25, 2015]. 11 AG v Joseph [2006] CCJ 3 (AJ): (2006) 69 W.I.R. 104 (CCJ Bds) at [20] per Wit J. 12 Endell Thomas. “The Rule of Law” in Francis Alexis, P.K. Menon and Dorcas White (eds) Commonwealth Caribbean Legal Essays (Faculty of Law UWI, 1982). pp.269 285, 272. n Albert Fiadjoe, Commonwealth Caribbean Public Law, 3rd edn (Routledge Cavendish. 2008), p. 130. 14 Bobb v Manning [2006] UKPC 22; [2006] 4 L.R.C. 735 (PC TT) at [14]. See also Endell Thomas, " lh e Rule of Law” in Francis Alexis, P.K. Menon and Dorcas White (eds) Commonwealth Caribbean Legal Essays (Faculty of Law UWI, 1982), pp.269, 272. |S See AG v Joseph [2006] CCJ 3 (AJ): (2006) 69 W.I.R. 104 (CCJ Bds). 16 I ord Bingham, “ The Rule of Law” (The Sixth Sir David Williams MemorialLecture, Cambridge, November 16,2006) at 5, available at http:llwww.cpldaw.cani.uc.uklMedia/'J'IIE/nJO lWLk%2()OF’A,20LA WF,202006.pd] [Accessed February 25. 2015J. 17 AGv Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104 (CCJ Bds) at [20] per Wit J. 18 Eranyois v AG LC 2001 FIC 16 (CARILAW) May 24, 2001 (CA SLU).

2. 'WICKED LAWS" AND THE RUI.E OF I.AW: THE DREAD ACT OF DOMINICA 1974

2 63

siblc, validly enacted and impartially applied.19 Professor Joseph Raz, the principal proponent of a formal notion of the rule of law, argues that the term will lack any usefulness if it is treated as proffering “a complete social philosophy.”20 He insists that the rule of law cannot mean the “the rule of good law” and suggests that it means exactly what it says: “that people should obey law and be ruled by it.”21 Thus the rule of law can be observed in a regime that violates human rights.22 He also said it was possible for the law to institute slavery without violating the rule of law.23 Formal concep­ tions do admit that the rule of law is the foundation for respect for human dignity and view it as a necessary, though not a sufficient, condition for human freedom.24 Those who subscribe to a substantive conception of the rule of law look beyond how laws are made and applied. They understand the concept to introduce a requirement that the content of laws should also be just. Some thick versions emphasise equal dignity, respect for autonomy and fair treat­ ment.'5 Others more generally associate the rule of law with adequate pro­ tection of fundamental human rights.26 The logic here is that human rights “protect us from the power of others”.27 More substantive accounts of the rule of law focus on “its capacity to liberate us from the untrammelled power of others by sub­ jecting us to law, a subjection that provides security and independence to the exercise of our agency”.28 This substantive version of the rule of law understands the rule of law to affirm human dignity, promote “a regime of secure and equal freedom” and broadly to include a commitment to human rights.29 It rejects the com­ patibility of slavery with the rule of law since “flagrant and discriminatory denials of autonomy are inconsistent with the state’s overarching fiduciary duty to govern through the rule of law”. 30 2. “Wicked Laws” and the Rule of Law: The Dread Act of Dominica 1974

Law is often relied on in moments of crisis to justify actions that imperil the fundamental principles associated with the rule of law. Law can be 19 Tom Bingham, 1'be Rule uj Law (Allen Lane, 2010), p.8. 20 Joseph Raz, “The Rule of Law and its Virtue” [1977] 93 LQR 195, 195. 11 Raz, above, at 195 96. 22 Raz, above, at 205. 21 Raz, above, at 211. ’4 Raz, above, at 204 09. T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (OUP. 2001), p.2. Sec also T.R.S. Allan, “The Rule of Law as the Rule of Reason: Consent and Constitutionalism” (1999) 115 LQR 221. 2b Tom Bingham, The Rule of Law (Allen Lane, 2010), pp.66 7. 27 Evan Fox-Decent, “Is the Rule of Law Really Indifferent to Human Rights?” (2008) 27 Law and Philosophy 533. 577. 28 Fox-Decent, above. 29 Fox-Decent, above, at 578. 311 Fox-Decent, above.

6-004

264

n i l - RULE OI' I.AW

used, ironically, ‘'to destroy legality” or the rule of law.-” Endell Thomas in his exposition on the rule of law drew attention to Dominica's crisis legislation, the Prohibited and Unlawful Societies and Associations Act 1974, which became known as the “Dread Act”.32 This law is one the most icpressive postcolonial statutes enacted in the Anglophone Caribbean. Thomas said that the law was incompatible with the rule of law.33 The extent to which this is so depends on the conception of the rule of law that is accepted. As we have seen, formal and substantive theories of the rule of law differ on whether the rule of law can coexist with a “wicked” or “bad” law. The Dread Act was enacted by a unanimous vote of the Dominica House of Assembly to deal with the “Dreads”, who were a disparate community of young people influenced by the Rastafari faith and the black power move­ ment. They had gained a reputation for criminal activity and violence in Dominica, and came to be viewed as the country’s greatest threat to national security and development and public order. Though they were described “as a minority terrorist organisation”,34 both their criminal activity and their degree of organisational structure were greatly exaggerated. The repressive Dread Act designated the Dreads an unlawful association, membership of which amounted to an offence.35 The wearing of one’s hair in dreadlocks was identified as a distinguishing mark and could give rise to an arrest without a warrant and being held without bail.36 On the first conviction for being a member of the Dreads, a mandatory sentence of nine months imprisonment followed, and two years for a subsequent conviction. During the passage of the legislation, the Premier promised “an eye for an eye, gun for gun and bomb for bomb, hand grenade for hand grenade, raid for raid, blade for blade, knife for knife and Mr. Speaker, life for life.”37 The police were given the power under the Act with a warrant to enter any home by force to search if the police had reasonable cause to suspect a Dread to be hiding therein.38 No proceedings either criminal or civil could be

31 The Stahroek News, June 29. 1991, at 4. cited in Bertrand Ramcharan, Hie Guyana Court of Appeal: Hie Challenges of the Rule of Law in a Developing Country (Cavendish Publishing. 2002). p.xlx. 32 Endell Thomas. "The Rule of Law” in Francis Alexis, P.K. Menon and Dorcas White (eds) Commonwealth Caribbean Legal Essays (Faculty of Law UWI, 1982), pp.269, 281 82. See generally on “wicked laws”, T.R.S. Allan, “ Law, Justice and Integrity: l'he Paradox of Wicked Laws” (2009) 29 OJLS 705. See also David Dyzenhaus, “The Legitimacy of the Rule of Law” in D. Dy/cnhaus, M. Flunt and G. Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing, 2009), pp.37. 33 Thomas, above. 34 Premier Patrick John, in Hansard (Dominica, November 19, 1974). at 22. 24. 35 Dom Prohibited and Unlawful Societies and Associations Act 1974 (PUSAA) (repealed by Prevention of Terrorism (Temporary Provisions) Act 1981 10). See Richard Salter, "Violence, Persecution. Millcnialism and the Dominica Dread Act” in C. Wessingcr (ed). Millenialism. Persecution, and Violence: Historical Case Studies (Syracuse UP, 2000), p. 101. 3 e.g. Christie v Ingraham (2008) 74 W.I.R. 1 (SC Bah). 147 Rees v Crane (1994) 43 W.I.R. 444 (PC IT ). 148 e.g. Eraser v JLSC [2008] UKPC 25; (2008) 73 W.I.R. 175 (PC SLU). 149Sharma v Browne-Antoine [2006] UKPC 57; (2006) 69 W.I.R. 378 (PC TT) at [14]. 1M) Ilochoy v NUGE (1964) 7 W.I.R. 174 (CA TT). bl A.V. Dicey, An Introduction to the Study of the Law oj the Constitution, 10th edn (MacMillan, 1959), p. 193. 142 Ramanoop v AG [2005] UKPC 15; (2005) 66 W.I.R. 334 (PC TT) at [17]. 153 dairy v AG (1999) 59 W.I.R. 174 (CA Gren) at [37] per Byron CJ. 154 Merson v Cartwright [2005] UKPC 38; (2005) 67 W.I.R. 17 (PC Bah).

6-022

278

l'lIH R U IL O l LAW

relief as was seen in Gciiry v /16 .155 An order had been made that the acquisi­ tion of the former Prime Minister’s property during the Grenada Revolution was in contravention of the Grenada Constitution, and that it should be restored to him and prompt compensation made. The government tarried in making full compensation. A mandatory order was obtained directing the Minister of Finance to make prompt payment of the due compensation. The government had argued that at common law the Crown was immune from suit in its own courts and thus a mandatory order could not be made against it. The Privy Council rejected this and maintained that the court’s power to grant effective constitutional remedies could not be limited by the immunities. (iv) Protection o f the law for all? The rule o f law, violence and impunity 6 023

The right to the protection of the law connotes procedural fairness in the conduct of proceedings that will affect one’s life, liberty or property. The CCJ has made it plain that this right, an aspect of the rule of law, is not exhaus­ tively set out in the bills of rights of Caribbean constitutions.156The question is whether it encompasses a broad “right to justice” 157and “fundamental fair­ ness” for all stakeholders in the administration of justice.158 including victims of crime. This attributes to the “protection of the law” a wider meaning than has been generally assumed in Caribbean constitutional law, but it now has many strands of support. The arbitrary exercise of state power in the criminal justice system can impair the fairness of proceedings involving criminal defendants as well as the fair prosecution of crime. Those who have allegedly committed crimes must be treated with respect and are entitled to a very high standard of fairness.159 Equally, the rule of law demands that those who commit crimes be brought to justice.160 Impunity is anathema to the rule of law. As early as 1978, Lord Diplock extra-judicially described “protection of the law” as an umbrella right that was “the safeguard of all the others”.161 He added that “without that ‘protection’ the other fundamental rights and freedoms are of little practical use.” 162 He insisted that protection of the law was still much broader and safeguarded against all arbitrary exercise of executive power. In the same vein, Barrow J in Francois v AGl6} described as inherent in the citizen’s right to “life, liberty, security of the person, equality before the law and the protection of the law” an entitlement to state protection against violence. In essence, the state must do everything it can to ensure that 155 Gaiiy v AG [2001] UKPC 30: (1999) 59 W.I.R. 174 (PC Gren). 136 AG r Joseph [2006] CCJ 3 (AJ): (2006) 69 W.I.R. 104 (CCJ Bds). 157 Lassalle v A G ( 1972) 20 W.I.R. 361 (C'A TT) at 395. I5K Tracey Meares, “ The Progressive Past" in J. Balkin and R. Siegel (eds) The Constitution in 2020 (OIJP, 2009), pp.209, 210. 159 See Gibson v AG [2010] CCJ 3 (AJ); 76 W.I.R. 137 (CCJ Bds). lwl R v A (No. 2) [2001] UKI1L 25: [2001] 2 W.L.R. 1546 (UK I1L) at [92] per Lord Hope of Craighead. IM Lord Diplock. “The Protection of the Law" October (1978) W IIJ 12, 13. 162 Diplock, above. 162 Francois v AG LC 2001 HC 16 (CARILAW) May 24, 2001 (I1C SLU).

4. c o r f ; p r in c ip le s a s s o c ia t e d w i t h t h e r u l e o r l a w

279

private citizens do not violate the rights of others, and this includes carrying out serious investigations of violations by others.104 In Kcireem v AG,]bS the Trinidad and Tobago Court of Appeal held that the failure of the police to identify and arrest the person who killed the father and husband of the appli­ cants, who was known to them, amounted to a breach of the protection of the law as guaranteed by s.4(b) of that country’s constitution in that it prevented the applicants from seeking access to the courts to vindicate the wrong and seek statutory compensation. Fundamental fairness is not just the prerogative of criminal defendants and civil litigants. It should protect the interests of the whole public.166 In 7? v Gilbert,167 the Privy Council held that there was no longer a require­ ment at common law for corroboration warnings in sexual offences cases in Grenada. Lord Hobhouse said that the requirement had been based on a discredited view that the evidence of female complaints should be regarded as suspect and liable to be fabricated. He added that this belief was not con­ ducive to the fairness of the trial as between defence and prosecution, nor to the safety of the verdict. He cited the Namibian case of State v K 168 in which that country’s Supreme Court concluded that the mandatory corroboration warning might adversely infringe the fundamental rights of the victims, which include a fair trial as well. Fairness as a standard applied to both victims and those accused of crimes. Courts must finely balance the right to procedural fairness of criminal defendants against the broader “public interest”169in securing law and order. While they must avoid pandering to public anxiety about high levels of crime in the Caribbean to baldly countermand the right of criminal defendants to procedural fairness, judges should have regard to larger concerns of funda­ mental fairness, as did Byron CJ in Gooderidge v R .m In that case there was powerful evidence given by a nurse and her co-worker at a health centre that they witnessed the sexual assault on a six-year-old child by her step-father. A medical examination of the child thereafter showed lacerations to the vagina and the absence of a hymen. On appeal against his conviction for indecent assault and his sentence of two years imprisonment, the appellant argued that there had been unreasonable delay in the proceedings in breach of his constitutional right to the protection of the law under the St. Vincent and the Grenadines Constitution. Byron CJ said that six years that had passed between arrest and trial was “presumptively prejudicial”. Still his constitu­ tional claim failed when the Court of Appeal had regard to the cogent evi­ dence in the case and the entitlement of this girl child to state protection from

164 See Velasquez Rodriguez v Honduras, Inter-American Court of Human Rights Series C No. 4 (July 29. 1988) and Maria da Penlui v Brazil, Inter-American Commission of Human Rights Case 12.051. Report No. 54/01, OEA/Ser.L/V/II.l 11 Doc. 20 rev. at 704 (April 16, 2001). 165 Kareem v AG Unreported December 21. 1990 (CA TT). IM Tracey Meares, "The Progressive Past” in J. Balkin and R. Siegel (eds) The Constitution in 2020 (OUP, 2009). p.209. 167 R v Gilbert [2002] UKPC 17; (2002) 61 W.I.R. 174 (PC Gren). 168 State v K [2000] 4 L.R.C. 129 (SC Nam). 169 See A&B Const s.3(a); Bah Const art.15(a); Bds Const s. 11(a); Bze Const s.3(a); Dom Const s. 1(a); Gren Const s. 1(a); Jam Const s. 13; SKN Const s.3(a); SLU Const s. 1(a); SVG Const s. 1(a). 17,1 Gooderidge v R VC 1998 CA 9 (CARILAW) January 12, 1998 (CA SVG).

280

THE RULE OF LAW

domestic violence and sexual abuse, and the interest that she and the society had in the prosecution of her case. Byron CJ bolstered his conclusions by noting the commitments made by St. Vincent and the Grenadines under the Convention under the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) to ensure that there are effective legal measures to protect women and girls against all kinds of violence and abuse.171 With the recognition that the right to the protection of the law is not exhausted by explicit protections provided in the constitutions, and the deep investment of Caribbean constitutions in ensuring effective relief for breaches of fundamental rights, it is anticipated that Caribbean courts will acknowl­ edge the right of victims of crime to fair and effective protection of the law in the investigation and prosecution of crimes, and to fundamental fairness in criminal trials. (e) The control of discretion: The intersection of constitutional and administrative law 6-024

The rule of law insists that an administrative discretion should not “be exer­ cised in a capricious and arbitrary manner, but in a disciplined and respon­ sible way.”172 In its overriding concern with protecting against the abuse and arbitrary use of state power, the rule of law has become a central pillar ol both administrative and constitutional law in the Caribbean.173 It has beer described as the “mainspring”174 of principles of good administration thal have developed administrative law to control administrative discretion, suet as reasonableness and fairness—and these concepts are now embodied within Caribbean constitutions. According to Wit J in Joseph, the constitutions havi been infused by the rule of law with the requirements of rationality, reasonai bleness and fundamental fairness.175 The Cayman Islands Constitution 200f has incorporated these standards in the constitutional text by guaranteeing j right to administrative fairness. All decisions and acts of public officials mus be lawful, rational, proportionate and procedurally fair.176 Anyone whost interests have been adversely affected by the decision of a public official ha the right to request and be given written reasons for that decision.177 (i) The standard o f reasonableness and subjectively worded discretion

6-025

The standard of “reasonableness” recurs throughout Caribbean bills of rights Limits on fundamental rights and freedoms must be “reasonably required for an enumerated legitimate state goal and/or “reasonably justifiable” i a democratic society.178 A statute that grants an uncontrollable discretio to a public official to constrain fundamental rights and freedoms flouts th 171 Committee on the Elimination of all forms of Discrimination Against Women Committe General Recommendation No. 19 (11th session, 1992), at [24](i). 172 Re Manpower Citizens Association (1964) 8 W.I.R. 52 (SC BG) at 63. 173 AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104 (CCJ Bds) at [20] per Wit J. 174 H.W .R. Wade and C.F. Forsyth, Administrative Law 10th edn (OUP, 2009), p.20. 175 AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W .I.R. 104 (CCJ Bds) at [20] per W it J. 176 Cl Const s.l9(l). 177 Above, s,19(2). 178 e.g. A&B Const s. 12(4).

4. ( ORF PRINCIPLES ASSOCIATED W ll H TIIF. RULE OF I.AW

281

requirement of reasonableness and is unconstitutional, as demonstrated in the ground-breaking emergency case, AG v Reynolds.179 During the 1967 emergency period in St. Kitts-Nevis-Anguilla, regulations were made that authorised the Head of State to detain any persons if “he is satisfied” that the person had been concerned in acts which were prejudicial to public safety or public order, and Reynolds was arrested and detained thereunder.180 The parent colonial emergency legislation in St. Kitts-Nevis-Anguilla gave the Head of State virtually unlimited power to make laws during an emergency period “as appear to him necessary or expedient” for defence, public safety and public order.181 The Constitution’s regime for emergency periods was in stark contrast to the expansive discretion given to the executive under the colonial law and the regulation in question.182 The right to personal liberty was protected and could be abridged during a period of public emergency only if the law in question authorised taking measures that were “reason­ ably justifiable for dealing with the situation” during the emergency.183 The privy Council held that the emergency legislation was not in sync with the Constitution because it gave “absolute discretion” and dictatorial power to arrest and detain.184 Because the colonial law was an existing law, it was modified to bring it into conformity with the Constitution. Alluding to the narrow interpretation of subjectively-worded discretions that had developed in administrative law,185 the Privy Council modified the emergency laws to introduce an objective test: that the proper exercise of the powers under the regulation by the Governor must be satisfied upon reasonable grounds. (ii) Legitimate expectations The doctrine of legitimate expectations prevents public authorities from 6-026 dishonouring certain promises or undertakings that they have made.186 It protects the right to procedural fairness and secures legal certainty.187 By constraining changes by the executive in policy without due regard to fair­ ness to citizens affected, the doctrine limits abuse of executive discretion.188 The constitutional right to due process or the protection of the law connotes procedural fairness and this can include the protection of legitimate expecta­ tions. If the executive promises not to execute condemned prisoners before the final determination of their petitions before international human rights bodies, and those prisoners face death if this policy is changed, then if no substantial public interest consideration weighs against this, the executive must honour its promise.189 This application of the doctrine of legitimate 179 AG v Reynolds (1979) 43 WIR 108:11980] A.C. 637 (PC SKNA). l" Emergency Powers Regulations 1967. reg 3(1). 181 Leeward Islands (Emergency Powers) Order in Council 1959 (SI 1959/2206). ,82 Charles v Phillips { m i ) 10 W.I.R. 423 (CA SKN) at 433-34 per Lewis CJ. 181 SKN Const 1967 ss.3, 14 (emphasis added). 184 AG v Reynolds {[919) 43 W.I.R. 108 at 117; [1980] A.C. 637 (PC SKN). 185 Eiversidge v Anderson [1942] A.C. 206 (HL) at 237 (Lord Atkins dissenting); Nakknda Ali v Jayamtne [1951] A.C. 66 (PC Cey); Secretary of State for Education and Science v Tameside MBC [1977] A.C. 1014 (HL). 181’ AG v Joseph [2006] CCJ 3 (AJ): (2006) 69 W.I.R. 104 (CCJ Bds) at [23] per Pollard J. 187 Joseph, above. 188 Joseph, above, at [26] per Pollard J. 189 Joseph, above.

I III K i n I Ol I AW

expectations does not amount to a wholesale incorporation of obligations made under an unincorporated treaty in domestic law. Ratification of the international convention giving a citi/en right of access to the treaty body to vindicate his or her rights is not enough to set in motion the legitimate expectation. There must be plain action or promises by the executive signal­ ling that it intends to allow' condemned persons to exercise their rights under the convention prior to execution.1'10 5. Does the Rule of Law Have Direct Force as an Unwritten Constitutional Rule?

6- 027

The i ulc of law assumes ditferent meanings in Caribbean constitutional law'. At times it is called upon just as a general ideal with no suggestion that it has any direct force. In Lewis v /16 ,101 Lord Hoffmann’s rebuke of his peers who had overruled many of the Privy Council's recent decisions in that death penally case, invoked the rule of law and the need for stability and certainty in the law but made no suggestion that it had direct legal effect. Indeed he conceded that the Privy Council was not bound by its earlier decisions. In other instances, the rule of law is regarded as a “constitutional value*’ that influences the interpretation of constitutional provisions associated with the concept, like the right to the protection of the law or to due process, or the redress clause.192 At the heart of the controversy is whether the rule of law is more than a general principle or constitutional value, and is an unwritten constitutional rule. If so, it w'ould function like the separation of powers, with direct effect as if it were an explicit provision of Caribbean constitutions. It would also be understood to be part of the structure of Caribbean constitutions with the constitutional text resting on this unwritten rule.193 The debate has important implications for Caribbean constitutional law. If the rule of law is an unwrit­ ten rule of Caribbean constitutions, it might provide a basis for constitutional review that stands independent of specific constitutional provisions.199 A second and related question is whether the rule of law functions as a supra constitutional or overriding norm, capable of trumping some explicit provi­ sions of the constitutions Here the jurisprudence is now relatively developed, particularly in relation to constitutional ouster clauses.19' If the rule of law’ is to have prominence as an unwritten constitutional rule, it cannot be as a purely abstract principle; there must be well-defined standards. Thus far 190 Lddy Ventose. "Legitimate Expectations. International t reaties and the Caribbean Court of Justice" in David Berry and fracy Robinson (eds) 't ransitions in C aribbean I aw: Lawntuking C on stitutionalism an d tlw C o n jlu a n c o f N ation al and In ternational Law (forthcoming, Ian Randle). 11,1 L ew is v A G (2000) 57 W.I R. 275: [2001] 2 A.C . 50 (PC Jam). Iv! Peter Doug and Cara Zvvibcl. “ l he Rule of I .aw in (he Supreme Court of ( anada" (2005) 55 UTLJ 715. 718. 191 M. Walters. "Written Constitutions and Unwritten Constitutionalism" in Ci. tluscrofl (ed). E xpounding the C onstitution: E ssays in C o n stitu tio n a l t h eory (CUP. 2008). pp.245. 204 65. an pclcr Hogg and Cara Zwibel, " l he Rule of Law in the Supreme Court of Canada" (2005) 55 UTLJ 715. 722. I9:> See above paras 5 018 5 020.

5. DOhS THF RULh OF LAW HAVE DIRECT FORCE

283

legal certainty, procedural fairness and access to the courts have emerged as aspects of the rule of law that are pre-eminent constitutional values. They find expression in particular constitutional provisions but their applicability is not confined to those sections. (a) The “inherent” constitution The closest a Caribbean court has come to giving the rule of law direct effect 6-028 as an implied justiciable constitutional norm is the CCJ’s expansive interpre­ tation of the right to the protection of the law in AG v Joseph.196 Although the question of the rule of law as implied rule did not arise directly, principles associated with the rule of law were treated as “inherent” to the constitution and having force independent of specific constitutional provisions. The CCJ faced a conundrum. Section 11 of the Barbados Constitution, which opens the chapter dealing with fundamental rights, includes the broad guarantee of a right to the protection of the law. A number of cases have deemed it to be mere a preamble that does not give rise to enforceable rights.197 This section is excluded from the list of provisions that can give rise to enforcement under the redress clause found at the end of the chapter.198 A later, more detailed provision covers some aspects of the right to the protection of the law, namely “protection” during legal proceedings, and a breach of this provision could indisputably give rise to constitutional redress. An expansive interpretation of protection of law, to include condemned prisoners’ legitimate expectation of access to international human rights bodies before execution, plainly fell outside this detailed section. The CCJ ruled that the right to the protection of the law was not exhausted by its description in that detailed section. Relief could be granted because the courts have an “inherent jurisdiction, and duty, to grant an appropri­ ate remedy” for a breach of the right.199 Wit J more closely identified the relationship between this inherency and the rule of law as a fundamental constitutional norm intrinsic to the Barbados Constitution. He described the constitution as a “qualitative and normative document” that as a whole should be interpreted and understood in light of the commitment articu­ lated in the preamble to the rule of law.200 Requirements such as fairness, rationality and reasonableness as aspects of the rule of law were defined as being “inherent” to the constitution even if they also had a textual basis.201 While the primary judgment of de la Bastide and Saunders JJ focussed on procedural fairness as the essence of the right to the protection of the law,

106 AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104 (CCJ Bds). See Tracy Robinson, "Our Inherent Constitution" in David Berry and Tracy Robinson (eds). Transitions in Caribbean I.aw: Law-making, Constitutionalism ami the Convergence of National and International Law (Caribbean Law Publishing, 2013), p.248. 197 e.g. Grape Bay v AG (1999) 57 W.I.R. 62 (PC Ber); Campbell-Rodriquez v AG [2007] UKPC 65 (PC Jam); Newbohl v COP [2014] UKPC 12; (2014) 84 W.I.R. 8; [2014] 4 L.R.C. 684 (PC Bah). See also below para 9 009. I9S Bds Const s. 18. 199 AG v Joseph [2006] CCJ 3 (AJ), (2006) 69 W.I.R. 104 (CCJ Bds) [64] (de la Bastide P, Saunders J). 2(111 Joseph, above, at [18] per Wit J. 201 Joseph, above.

284

Till- RUI.F OF I.AW

Wit J added as a key dimension the availability of effective remedies. He said that the constitutional text, and particularly redress clause in s.24, “reflected” rather than created the right to the protection of the law. As a consequence, the text should not be interpreted in a way that undermined that fundamental commitment of the rule of law.202 One way of explaining the outcome in Joseph is that the CCJ gave effect to an implied and enforceable constitutional protection of the rule of law. Wit J’s judgment, and to a lesser extent that of de la Bastide P and Saunders JJ, can be associated with an emerging idea that the rule of law, is a foundational constitutional norm that pervades the entire con­ stitution and has a textual basis, but the text does not represent the sum total of its expression. It is hoped that an opportunity will soon arise for the CCJ to further explain and discuss the implications of the “inherent” constitution. (b) Basic structure doctrine 6-029

Bowen v AG203 is a bold Belize Supreme Court decision in which Conteh CJ endorsed the basic structure doctrine, borrowing from Indian constitutional law. Parliament cannot make a law, according to the Chief Justice, that was contrary to the basic structure of the Constitution itself, even if it complies with the manner and form requirements for constitutional change.204 He concluded that this was an implied limitation flowing from the structure of the constitutions. Six elements comprised this basic structure: democracy, supremacy of the constitution, protection of fundamental rights and free­ doms, separation of powers, limited legislative power, and the rule of law along with an independent judiciary.205 In the appeal from Bowen, the Privy Council did not express a view on the application of the basic structure doctrine to the Belize Constitution.206 The doctrine has some appeal because it closely parallels the reasoning in Hinds v R.201 In that seminal case, the Privy Council regarded separation of powers as part of the structure of Caribbean constitutions, and it was recognised to be an implied constitutional principle with direct effect. There are also signs that judicial independence may hold similar force.208 The rule of law is identi­ fied as the root of both principles, and if so, there is some logic to assuming it has a similar place in the constitutions. Separation of powers is a principle of good governance based on the rule of law, which involves checks and bal­ ances designed to prevent abuse of governmental power and its concentration in one arm.209 Judicial independence, the strongest element of the separation of powers, is almost universally acknowledged to be an essential component 202 Joseph, above. 203 Bowen v AG BZ 2009 SC 2 (CARILAW) February 13,2009 (SC B/e). See also above paras 3 022 3 023. 204 Joseph, above, at [23] per Conteh CJ. 205 Joseph, above, at [119]. 2Uh Prime Minister v Velios [2010] UKPC 7 (PC B/e). 21,7 Hinds v R (1976) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam). 208 Suratt v AG No 1 [2007] UKPC 55; (2007) 71 W.I.R. 391 (PC TT). 209 See DPP v Mollison [2003] UKPC 6; (2003) 64 W.I.R. 140 (PC Jam) at [14] per Lord Bingham; Ahnee v DPP [1999] 2 A.C. 294 (PC Maur).

5. OOFS IUE RULE OF LAW HAVE DIRECT FORCE

285

of the rule of law.210 Judges cannot rule in accordance with the law and provide access to impartial justice if they are subject to undue pressure or influence from other branches. Bowen's basic structure doctrine is distinguishable from Hinds in a crucial regard. Hinds considered whether ordinary legislation was in violation of the implied constitutional rule. It gave no thought to the scenario in Bowen where the legislative amendments followed the manner and form require­ ments for constitutional change. Furthermore, recent cases have emphasised that the separation of powers doctrine is not a supra-constitutional rule, as the basic structure doctrine suggests, and is more in the nature of a pithy description of how the constitutions work.211 While Conteh CJ’s identifica­ tion of core dimensions of Caribbean constitutions is attractive, his sugges­ tion that the courts could overturn constitutional amendments that infringe any of the six identified structural elements of the constitution is too unre­ served. Virtually every constitutional change could be reopened for judicial scrutiny based on one of these elements, and the threshold for holding a constitutional amendment unconstitutional is opaque. An expansive basic structure doctrine would undermine some of the very elements it seeks to protect- namely the rule of law and its interest in stability, certainty in the law and democracy -since the doctrine gives unprecedented pre-eminence to courts at the expense of legislatures. The argument that certain indefen­ sible constitutional amendments could be challenged on the ground that they amount to a pernicious violation of unwritten constitutional norms should not be ruled out.2'2 But this must be an exceptional jurisdiction with narrowly-drawn parameters. (c) Legal certainty as an overriding precondition for constitutional validity As already discussed, legal certainty is a precondition for the constitutional validity of laws restricting fundamental rights and freedoms. This devel­ opment can be textually grounded in the constitutions’ requirement that all limits on rights be authorised by a “law”. The question may arise, for example, as whether a colonial law that abridges fundamental rights and is vague enjoys the immunity of the general savings law clause. It is correct to say that it is not an existing law as the clause demands, because it fails to provide adequate guidance to allow a citizen to regulate his or her conduct. In essence, this interpretation of “law” reflects the constitutions’ commit­ ment to the rule of law and transcends the bill of rights. This is consistent with the principle that superior courts retain the power to review a colonial or existing law on grounds that go beyond the bill of rights and its general savings law clause.213 Thus there are two ways of conceptualising the role of legal certainty and the rule of law: a micro and a macro way. In the micro 2,0 IJCHR (1098) Ltd y Marshall-Burnett [2005] UKPC 3; (2005) 65 W.I.R. 268 (PC Jam) at [12] per Lord Bingham. See also Barnwell v AG (1993) 49 W.I.R. 88 (CA Guy) at 186. 211 Boyce v R [2004] UKPC 32, (2004) 64 W.I.R. 37 (PC Bds); Matthew v State [2004] UKPC 33, (2004) 64 W.I.R. 412 (PC TT). 2P M ark Walters, “The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law” (2001) 51 UTLJ 91, 140. See also Bowen v AG BZ 2009 SC 2 (CARILAW) February 13, 2009 (SC Bze) at [124], 2n See DPR v Moll,son [2003] UKPC 6; (2003) 64 W.I.R. 140 (PC Jam).

6-030

2X6

i i i H R n r i-

01

i.avv

sense, the argument is that a precondition for the application ol general savings law clause is that the existing law must be a law that is, legally certain. The clause has no efficacy in relation to vague laws. This is a tech­ nical reading of the clause itself and the word "law", having regard to the principle of legal certainty. The macro argument steps outside the bill of rights, where the general savings law clause reigns, and challenges the law on a non-bill of rights ground: violation of the rule oflaw and its corollary principle of legal certainty. (d) Due process and access to courts as trumps 6-031

As a general principle, courts will not be discouraged by constitutional ouster clauses from inquiring into whether a public body performed its functions in contravention of the right to procedural fairness even a body performing what are considered to be prerogative powers.214 Both the right to proce­ dural fairness and to redress for breaches of that right, principles associated with the rule of law, have been treated as paramount ones that can super­ sede other provisions in the constitutions where there is conflict, I'hcre have been strong indications already that due process or the protection of the law is an “umbrella right” that safeguards others215 and is not exhausted by particular provisions in the constitutions.216 In making provision for Special Acts, the [ rinidad and Tobago Constitution added a proviso: the law passed by the requisite majorities is valid notwithstanding its inconsistency with the Constitution, unless it is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the indi­ vidual.217 Highlighting the status of due process as an umbrella right, courts have equated the precepts of the rule oflaw, especially due process, with an “irreducible minimum standard” for establishing whether a law meets this standard.218 In Thomas v AG,110 the Privy Council rejected a strict application ol' the constitutional ouster clause that precluded judicial review into whether the Police Service Commission had validly performed any function vested in it by the Constitution. If the Service Commission acted outside its functions, the court had jurisdiction to declare its actions null and void, lhe ouster clause was also constrained by the right of a police officer to a fair hearing in respect of proceedings to determine his rights and obligations, and to redress where that right had been breached, l he specific right to due process and redress overrode the general no-judicial review clause. I’he law relating to constitutional ouster clauses was further influenced by CCSU v Minister for the Civil Service,220 a landmark decision of the House of Lords. It concerned the reviewability of delegated powers emanating from a prerogative power, 2,4 AG v Joseph [2006] CCJ 3 (AJ): (2006) 69 W.I.R. 104 (CCJ Bds) at [40], See above paras S 018 5 020. 2I' Joseph, above. 2I ihr ee-island state. D u r i n g the pu bli c e m e r g e n c y d ec l ar ed tha t year, H e n r y C h a r l e s w as d et a in e d . H e suc cee ded in a r g u i n g t h a t e m e r g e n c y law gave the ( j o v e r n o r d i c t a t o r i a l p o w e r s t o d o w h a t was nece ssary a n d e x p e d i e n t instead o f p e r m i t t i n g objectively w h a t w a s r e a s o n a b l y justifiable. Reynolds, a n o t h e r det ai n ee , s u cce ed ed o n similar g r o u n d s a few ye ar s la ter .2''0 Also in 1967, th e re w a s a successful c ha l le n ge by a n u m b e r o f p e r s o n s c h a r g e d with s p e a k in g a t a pub lic m e e ti n g w i t h o u t first h a v i n g o b t a i n e d p er m is sio n from the C h i e f o f Police.267 A few y ea rs later, the Privy C o u n c i l reviewed the Public

[1980] A.C. 637. [1980] 2 W.L.R 171. [19791 3 All 1 R. 179 (PC SKN); ( OP v Pon\ll{ 1908) 12 W.I.R. 403 tllC SKN). : '7 Collvinore v A (i( 1969) 13 W.I.R. 229. (PC 1 I ) Heckles v Dellaimin' (1963) 9 W.I.R. 299 (CA 1 1) at 309. 2111 lict kies, above. :wi k'.dwards r Sgl. . llleyne (19/0) 17 W.I.R. 358 (C V I I ); II 'eekes r Montana (1970) 16 W .1 It. 42.3 (HC 1 T). '0| IL.rA-o i- Montano { 197(1) 16 W.I.R. 123 (I |C | | ). la ssa lle r .10(1972) 20 W.I.R. 361 (CA TT) at 3X2. Ae m a i l r Pitt, t x p. K e lslta ll ( 1971) 19 W.I.R 136 (HC 11 ). Robinson r Sealer 1 T 1974 11C X (( ARIL AW) June 17. 1974; (1974) 1 ( C< 'HR 94 (HC I

I).

Charles v Phillips (1967) 10 W.I.R. 423 (CA SKN). See Sir I red Phillips. Caribbean 7 iR and Culture: I Citizen Reflects (Tleinemann Publishers (Caribbean). 1991). pp.X) S’9. 2M’ .10 r Reynolds (1979) 41 W.I.R. 108. [19801 A.C. 637; [19801 2 W.l ,R. 171- [1979] 7 \1 l-.R. 129 (PC SKN). y'1 COP v Powell (1968) 12 W.I.R. 403 (HC SKN). I hey challenged the constitutionals o the amended Public Meelings and Processions Ordinance. Cap. 302. I he High ( ouri declarer

7.

run r u l e

oh

la w

.

th e ccj a n d t h e

Ca

r ib b e a n c o m m ij n i e y

293

Meetings and Processions Act 1969 when Arthur Francis was charged with using a loudspeaker at a public meeting without permission, contrary to the Act. The Privy Council held that the absence of guidelines for the Chief of police to exercise his powers did not make the law defective, or at any rate not seriously defective.268 Dominica and Jamaica had various crises in the 1970s. In 1973, a state of emergency was declared to contain the chaos caused by a labour strike.269 The infamous Dread Act followed the next year. In 1974, Jamaica enacted the Gun Court Act and the Suppression of Crimes (Special Provisions) Act to deal with escalating violent crime in Jamaica. The former established special courts to deal with firearm offences and provided for these trials to be held in camera. Hinds v R ruled that the statute was in part unconstitutional because it transferred the constitutionally-protected jurisdiction of the superior court and its judges to deal with serious crimes to inferior court judges. The Suppression of Crimes (Special Provisions) Act gave extraordinary powers to the law enforcement officers and the Minister of National Security to desig­ nate areas to which the security forces could establish cordons, search without warrants and establish curfews.270 1976-77 was marked by a year-long state of emergency in response to political violence, during which a general election was called. The detention of members of the opposition party gave rise to litigation.271 The Constitution was suspended in the revolutionary People’s Revolutionary Government (PRG) that came into power after overthrowing the authoritarian government of Eric Gairy in 1979.272 In Mitchell v DPP,m the doctrine of necessity was invoked to legitimate the extra-constitutional actions of the Governor General who exercised substantive executive and legislative power after the US forces intervened in Grenada in 1983. 7. The Rule of Law, the CCJ and the Caribbean Community

The rule of law is now accepted to be an integral dimension of “real development”.274 Inadequate and inefficient justice systems have been linked that part of this law contravened freedom of expression, assembly and association as protected by the Constitution. 2W Francis v COP (1973) 20 W.I.R. 550 (PC SKN). -M Maximal v AG (1974) 21 W.I.R. 548 (CA WIAS). 27u Repealed by Suppression of Crime (Special Provisions) Act (Repeal) Act 1994 10. See W. Gilmore, '‘ The Suppression of Crimes (Special Provisions) Act 1974: A Suitable Case for Treatment" [1975] Jamaica LJ 14; Jamaica Har Association. “The Jamaica Bar Association's Statement on the Gun Legislation” [1975] Jamaica LJ 32. 2/1 Iii’A G, b'.x p. Grange (1976) 23 W.I.R. 139 (SC Jam); R v Minister of National Security, Ex p. Grange (1976) 24 W.I.R. 513 (SC Jam). 7'2 See above para.2-017. 271 Mitchell v DPP [1986] L.R.C. (Const) 35 (CA Gren). See P. St. J. Smart, “ Revolutions, Constitutions and the Commonwealth: Grenada" (1986) 36 ICLJ 950: Yash Ghai, “Coups and Constitutional Doctrines: The Role of Courts” (1987) 58 Political Quarterly 308; William Dale, "The Making and Remaking of the Commonwealth Constitutions” (1993) 42 1CLQ 67, 78 79; Richard Kay, “ Legal Rhetoric and Revolutionary Change” (1997) 7 Caribbean Law Review 161; Simeon McIntosh, “Kelscn in the “Grenada Court’: Essays on Revolutionary Legality” (IRP, 2008). 274 Shridath Ramphal, “Development and the Rule of Law' (1981) 7 Commonwealth LB 1085, 1094. 1096.

6-035

7.94

1Ilh. Rl IT I Ol I.AW

lo underdevelopment in the Caribbean Community.27'' Both the appellate and original jurisdictions of the CCJ are expected to promote the rule oflaw in the Caribbean Community and aid regional economic development by creating greater certainty in the law and assisting in the capacity building of courts in the region to enable more effective delivery of justice. (a) Legal certainty and the CCJ's appellate jurisdiction 6

036 To promote legal certainty in its appellate jurisdiction, the CCJ has said that applicable decisions of the Privy Council continue to bind lower courts from which it hears appeals.276 Only the CCJ itself can overrule such decisions. Pollard J suggested that the ideal of legal certainty might in some cases act as a restraint on the CCJ itself. In Joseph, the CCJ covered much the same ground as did the Privy Council six years earlier in the Jamaican appeal, Lewis v A G.211 The outcomes of both courts on access by condemned prisoners to international human rights bodies before their execution were rather similar, but not the reasoning. Pollard J noted that Lewis had been “internalised" by Caribbean countries still bound by the Privy Council but who had expressed acceptance of the CCJ’s appellate jurisdiction by their ratification of the CCJ Treaty. He thought there was an “overriding regional interest” in stability in the administration of justice that would lean towards the new CCJ adopting the Privy Council’s decision, but putting it “on a juridically feasible basis.”278 (b) The CCJ and the CARICOM Single Market

6 037 The regional goal is for the Caribbean Community to be a single economic space. The CCJ is intended to be a credible and authoritative mechanism to determine rights and obligations under the Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy (RTC).279 With each member of the Community being a sovereign state whose courts may come to varying interpretations of aspects of the Treaty that it has incorporated into its national laws, there is, as Duke Pollard puts it, a “built-in prescription for legal uncertainty”, especially for investors making economic decisions. 180 The RTC stipulates that where a national court is seized of a question concerning interpretation of the Treaty, that court must refer the question to the CCJ if it considers that a decision on the matter is necessary to enable it to give judgment.281 To advance certainty, the CCJ Rules provide that only a single judgment with no dissenting opinion

275 Duke Pollard, “The Caribbean Court Of Justice in Regional Economic Development” (CARICOM Secretariat, undated), at 6, available at littp:f/\vww. carihbeancoitrtofjitstrce.orgl papersandarticleslccj-regionalecondev-clp. p d f [Accessed February 25, 2015], 276 This would not apply to Guyana, except for early decisions prior to the abolition of appeals to the Privy Council. 277 Lewis v A Cf (2000) 57 W.I.R. 275; [2001] 2 A.C. 50 (PC Jam). 278 AG v Joseph [2006] CCJ 3 (AJ); (2006) 69 W.I.R. 104 (CCJ Bds) at [16] per Pollard J. 279 Duke Pollard, “The Caribbean Court Of Justice in Regional Economic Development” (CARICOM Secretariat, undated) at 6, available at littp.ilwm v.caribbcuncourtojjusticc.orgl papersandarticleslccj-regioiudecondev-dp.pdf [Accessed February 25. 2015]. 280 Pollard, above, at 6. 10. 281 RTC art.214.

7. l HK RUI F, OF I AW , THE CCJ AND THE CARIBBEAN COMMUNI'I Y

295

is to be given in its original jurisdiction,282 The CCJ, in one of its early deci­ sions exercising its original jurisdiction in relation to the RTC, explained that the CCJ’s exclusive and compulsory jurisdiction in relation to the interpreta­ tion of the Treaty transforms the “voluntary arrangements in CARICOM into a rule-based system, thus creating and accepting a regional system under the rule of law.”283 Another aspect of the rule of law is served by the original jurisdiction of the CCJ, since the Court provides an avenue for meaningful access to justice for member states and their nationals. Otherwise, Treaty rights and duties could become a dead letter, “illusory” and “vacuous”.284 The CCJ has jealously guarded this function. Although the RTC does not explicitly mention the rule of law, the CCJ has declared that it is a norm applicable to the Caribbean Community and its Single Market.285 Since the rule of law demands legal accountability, the RTC has been interpreted as giving a private party the right to challenge not only decisions of the Community but those of that party’s own state.286 The rule of law also insists on effective remedies to vindicate Treaty rights, including compensation and mandatory coercive orders.287 The Court is not limited to merely making declarations. The Court “walks a very fine line” in balancing respect for the rule of law with the intrinsic limits the Court faces in granting redress against sovereign states in international law.288

’112 CCJ Original Jurisdiction Rules 2006 r 3.4(4). 2S" PCI. v Caribbean Community [2009] CCJ 2 (OJ): (2009) 74 W.I.R. 319 at [32], 784 Duke Pollard, “The Caribbean Court Of Justice in Regional Economic Development” (CARICOM Secretariat, undated) at 10, available at http:llmvw.caribbeancourloljiistice.orgl papersandarticleslccj-regionalecondev-dp.pdf [Accessed February 25, 2015]. 2X5 I CL v Guyana (No. 2) [2009] CCJ 5 (OJ); (2009) 75 W.I.R. 327 at [27], 286 TCI. v Caribbean Community [2009] CCJ 2 (OJ); (2009) 74 W.I.R. 319. 187 T C L v Guyana (No. 2) [2009] CCJ 5 (OJ); (2009) 75 W.I.R. 327 at [27], 288 The Rt. Hon. Mr. Justice Michael de la Bastide “Five Years Of CCJ's Contribution To Caribbean Jurisprudence” (Address, Trinidad, April 16, 2010) at 4, available at http:llwww. carihheancourtoJjitstice.orglpapersandarticlesl5yrs% )20oJ% o20CCJs% 2()Contrihution% 20-% 20 Addresd,A 20hy% 20President.pelf [Accessed February 25,2015].

CHAPTER 7 t h e d is t r ib u t io n a n d s e p a r a t io n o f governm ental po w ers

1. The Main Functions and Branches of Government

Caribbean constitutions distribute and regulate governmental functions into three main branches or arms: legislative, executive and judicial. The primary function of the legislative branch is to make laws for “peace, order and good government”.1 Caribbean legislatures or parliaments are both unicameral and bicameral and include the Head of State.2 When validly enacted, laws made by the legislature must be obeyed by all members of society, includ­ ing the executive and judiciary. The legislative power is not unfettered. It is limited by the provisions of the constitution.3 The primary responsibility of the judicial branch is to determine, interpret and apply the law. It involves the adjudication of contested legal rights and the trial of criminal offences. Judges settle disputes between parties, “apply­ ing the necessary law to the determined facts and arriving at conclusions and issuing consequential orders which are binding on the parties.”4 Caribbean constitutions give detailed attention to the exercise of judicial power in supe­ rior courts. However, they presume the existence of inferior courts exercising summary jurisdiction and that judicial power will also be exercised by other judicial officers, most notably magistrates. The executive branch has control of the general conduct of government. It formulates and implements government policies, and carries out the functions of government on a day to day basis. This branch is responsible for the mainte­ nance of order and enforces the laws of the land. The functions of the executive branch are effectively led by a Prime Minister and the Cabinet in the independ­ ent states, except in Guyana where the head of government is an executive President. In the overseas territories, these functions are performed by the Governor, Premier or Chief Minister, and an Executive Council or Cabinet. An extensive range of personnel in ministries, governmental departments and agencies, and other public bodies undertake the functions of the executive. 1 Ang Const s.47; A&B Const s.46; Bah Const art.52; Bds Const s.48; Bze Const s.68; Ber Const s.34; BVI Const s.71; Cl Const s.59(2); Dom Const s.41; Guy Const art.65; Jam Const s.48; Mont Const s.71: SKN Const s.37; SLU Const s.40; SVG Const s.37; TT Const s.53; TCI Const s.62. 2 See above para.2 015. 3 Collym ore v A G (1967) 12 W.I.R. 5 (CA TT) at 9 per Wooding CJ. 4 Jam aica S ta ck Exchange v Fair Trading Commission JM 2001 CA 1 (CARILAW) January 29, 2001 (CA Jam) at 24 per Forte P, quoted by M cIntosh J in Olint Corporation v Financial Services Commission JM 2007 SC 120 (CARILAW) December 24, 2007 (SC Jam) at 69 70.

7-001

298

11 IF DIS'l RIBU 1ION A ND SFPA R A 1ION OF GOVHRNMI NTAI. ROW I .RS

2. Background to the Doctrine of Separation of Powers

7-002

Few concepts in constitutional law are as ubiquitous as the doctrine of sepa­ ration of powers. In its modern form, the doctrine operates not merely as a rule of law but also as a normative principle of good governance and democracy.5 The doctrine gained prominence in the Enlightenment period mainly through the theories of French philosopher Baron de Montesquieu. In L Esprit ties Lois,6 Montesquieu conceived of the separation of powers as the need to reduce arbitrariness in government, thereby promoting the liberty of the subject. He said that “there is no liberty if the power of judging is not separated from the legislature and executive”. He added that: “There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes in individual causes.”7 By preventing the concentration of power in one body, and its insistence on an autonomous and independent judiciary, the doctrine developed as a bulwark against tyrannical rule.8These ideas were highly influential during the drafting of the US Constitution, which is the archetype of the doctrine. The President and his or her Cabinet are not members of Congress, nor do they require the majority support of the legislative branch for their continuation in office.9 In contrast, parliamentary systems, which dominate the world, embody a partial version of the doctrine,10 in which considerable overlap between the legislative and executive branches exists.11 The interplay between these two branches spans both form and substance. Notoriously, their membership is the same, as ministers are sourced from Parliament.12 More profoundly, the executive branch is in principle responsible to the legislature, though in prac­ tice Parliament is controlled by the executive. As summed up by the term “responsible government”, the powers and operations of the government are 5 AG v Zuniga [2014] CCJ 2; (2014) 84 W.I.R. 101 (CCJ Bze) at [40],

6 Montesquieu, L'E sprit des Lois (Lavigne. 1844). 7 Quoted in Hilaire Barnett, Constitutional and A dm inistrative Law 9th edn, (Routledge, 2011), p.73; References to Montesquieu’s formulation of the doctrine can be found in many Caribbean cases including B C B Holdings L td v A G [2013] CCJ 5; (2013) 82 W.I.R. 167 (CCJ Bze) at [42], 8 James Madison. “Federalist 47” in John Jay, Alexander Hamilton and James Madison, lh e Federalist Papers (Clinton Rossiter ed, Penguin Books, 1961), p.300; Bata Shoe Company v CIR GY 1975 HC 3 (CARILAW) January 15, 1975 (HC Guy) at 32 per Massiah J. 9 Laurence Claus, “Separation of Powers and Parliamentary Government” in Vikram Amar and Mark Tushnet (eds). Global Perspectives on Constitutional Law (OUP, 2009), p.48. lu Ronald Krotozznski Jr, “The Separation of Legislative and Executive Powers” in Tom Ginsburg and Rosalind Dixon (eds). Comparative Constitutional Law (Edward Elgar, 2011), p.234. 11 O. Hood Phillips, “A Constitutional Myth; Separation of Powers” (1977) 93 LQR 11; A.R. Carnegie, “Floreat the Westminster Model? A Commonwealth Caribbean Perspective” (1996) 6 Carib LR 1. 12 Ang Const s.24(2); A&B Const s.69(4); Bah Const art.73(2); Bds Const s.65(2); Bze Const s.40(2); Ber Const s.58(2); BVI Const s.52(2); Cl Const s.44(l)(b); Dom Const s.59(4); Gren Const s.58(4); Guy Const art. 103(2), (3); Jam Const s.70(l); Mont Const s.33(2); SKN Const s.52(4); SLU Const s.60(4); SVG Const s.51(4); TT Const s.76(3); TCI Const s.31(l)(c).

.1. Dr FIN! TION OF DOCTRINF OF SEPARATION OF POWFRS

299

scrutinised in Parliament, and a vote of no-confidence in the government can lead to dissolution of Parliament and to the holding of a general election.13 However, the executive’s majority in Parliament combined with the party system means that the executive drives the legislative agenda and is normally able to enact all its policies and proposals. Discrete classifications of functions can fail to capture the complexity of modern structures of government. It has been argued that “overlap and confusion is [sic] significant and desirable.”14 Sir Allen Lewis maintained that this aspect is heightened in Caribbean coun­ tries because of the needs of rapid development, and with economic and social re-construction which require “utmost trust and co-operation between the Legislature and the Executive and the Administration”.15 3. Definition of Doctrine of Separation of Powers

(a) Partial doctrine determined by what the constitutions say and do The “very important and salutary principle” 16 of separation of powers is one 7-003 of the most endorsed doctrines of Caribbean constitutional law,17 though its edges are indistinct. This is because the powers dispersed in Caribbean consti­ tutions are not “contained in tight, hermetically sealed compartments”,18 but are shared among the organs of government. There is no a priori or universal standard against which to measure the doctrine’s meaning. In order to iden­ tify the extent of its application in any given constitution, reference must be made to that constitution’s provisions, viewed in their entirety. “Empiricism” should prevail over “idealistic fervour”.19 When shared powers or functions among the branches are allowed by the constitutions, the separation of powers doctrine generally operates to regulate the degree of such overlap.20 It is not permissible for one branch to swallow up the whole of the power of another21 or to “directly impinge upon the essential functions of the other.’22 (b) An implied and justiciable principle The separation of powers doctrine arises through implication in Caribbean constitutions, though it operates as if it is set out explicitly. This means that n Ang Const s.25(1); A&B Const s.60(5); Bah Const art.74; Bds Const s.61(2); Bze Const s.37(4); Ber Const s.59(l); BVI Const s.53; Cl Const s.51(1); Dom Const s.59(6); Gren Const s.52(4); Guy Const a rl.106(6); Jam Const s.64(5); Mont Const s.34(l); SKN Const s.52(6); SLU Const s.55(4)(b); SVG Const s.48(5)(b); TT Const s.77; TCI Const s.33(l). 14 N.W Barber. “Prelude to the Separation of Powers'’ [2001] CLJ 59, 69. h Sir Allen Lewis, “The Separation o! Powers" [1978] WILJ 4. 7. D PP v M attson [2003] UKPC 6; (2003) 64 W.I.R. 140; [2003] 2 A.C. 411 (PC Jam) at [13], ! Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the IVest Indian Polity (Caribbean Law Publishing Co. 2002). p. 172. '* BCB Holdings L td v A G (2013) 82 W.I.R. 167 (CCJ Bze) at [27] per Mendes JA. " Rata Shoe Company v CIR GY 1975 HC 3 (CARILAW) January 15, 1975 (HC Guy) at 32 per Massiah J. Bata Shoe , above; Astaphan v Comptroller o f Customs (1996) 54 W.I.R 153; (1999) 2 L.R.C. 569 (CA Dom). :1 Bala Shoe . above. ” BCB Holdings L td v A G [2013] CCJ 5; (2013)82 W.I.R. 167 (CCJ Bze)at [43] per Saunders J.

7-004

300

Mil- DISTRIBUTION A N D S! PARA1 ION 0 1 ' (iOVF.RNMI-N I AI I’OWI KS

laws that are inconsistent with the doctrine are void to the extent of that inconsistency.23 A wide array of ordinary laws in the Caribbean has been invalidated because they violate the doctrine.24 Where the law in question was in existence before the date of the constitution, the constitutions provide that it should be modified to be brought into conformity with the constitu­ tion.25 A more complex situation arises where the law in dispute amends the constitution.26 (c) Each organ is vested with the power it needs and a measure of autonomy to carry out its functions 7 005

The doctrine implies a separation of the fundamental functions of the legisla­ ture, executive and judiciary. The trinity of core governmental powers are dif­ ferentiated and distributed.27 Each function is mainly consigned to a distinct, autonomous organ which is unable to “invade [the] other’s province.”28 In Almee v D PPp Lord Steyn explained that: “Under the Constitution one branch of government may not trespass upon the province of any other .. . [TJhe Constitution gave to each arm of gov­ ernment such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary.”30 The doctrine thus has both enabling and disabling dimensions. It is enabling because it facilitates governance by ensuring that each organ is vested with the power it needs to undertake its core functions. With this distribution of functions among different branches comes a measure of autonomy. Such arrangements accommodate a degree of flexibility, designed to prevent the constitution from becoming “unworkable” and “a recipe for chaos.”31 The doctrine is simultaneously disabling because it accommodates checks and balances on each organ, which prevent a concentration of power and ensure that no one branch gains ascendancy over the others.32 23 Hinds v A G { \ 9 1 S ) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam).

24 Hinds , above. See also Aslaphim v Comptroller o f Customs (1996) 54 W .i.R. 153. (1999) 2 L.R.C. 569 (CA Dom); I J CHR (1998) I.tel v M arshall-Burnett [2005] UKPC 3. (2005) 65 W.I R. 268, [2005] 2 A.C. 356 (PC Jam); D P P r Mollisun (2003) 64 W.I.R. 140, [2003] 2 A.C. 411 (PC Jam); Bowen v A G BZ 2009 SC 2 (CARILAW) February 13, 2009 (SC 13/c); Browne r R (1999) 54 W.I.R. 213. [2000] 1 A.C. 45, [1999] 3 W.L.R. 1158 (PC SKN). Around the Commonwealth, see South African Association o f Personal Injuries Lawyers v Heath [7000] Z.A.C.C. 22; 2001 (I) SA 883; [2001] 4 L.R.C. 99 (CC SA); S tate v K hoyratty [2006] UKPC 13, [2007] I A.C. 80 (PC Maur). 25 Browne, above; M ollison , above. 26 See Bowen v A G BZ 2009 SC 2 (CARILAW) February 13, 2009 (SC B/e). See above paras 4 022 4 023. 27 Geoffrey Marshall, Constitutional 'theory (OUP. 1971), p .100. 78 Bata Shoe Company v CIR GY 1975 HC 3 (CARILAW) January 15, 1975 (HC Guy) al 33 per Massiah J. 29 Almee v D P P [1999] 2 A.C. 294 (PC Maur) at 303. 311 Almee , above, at 303. 31 Director of Personnel Administration v Cooper TT 2005 CA 5 (CARILAW) January 19. 2005 (CA TT) at [36] per Sharma CJ. 32 James Madison, '‘Federalist 47” in John Jay, Alexander Hamilton, and James Madison.

4. THE DOCTRINE EXPRESSED AND IMPLIED IN THE CONSTITUTIONAL TEXTS

301

(d) Has inter-branch and intra-branch dimensions The doctrine of separation of powers is commonly described with reference to the relationship between the three main branches of government—inter­ branch separation. The doctrine also has a role in preserving autonomy within each branch, an intra-branch dimension. Within each branch of government there are demarcations in functions and personnel. Some of these distinc­ tions are hierarchical and separation of powers seeks to ensure a proper match between personnel and functions. Superior court judges deal with the most serious and substantial cases and Caribbean constitutions confer on them a very high degree of independence from interference. The judicial functions assigned to these judges cannot be assigned to judicial officers who do not enjoy the same degree of protection for their independence.33 In other instances, intra-branch separation of powers insulates certain personnel from interference by another part of the same branch, often high-ranking ones. Public servants, for example, work side by side with the political directorate in performing executive functions. Caribbean constitutions provide some protection for public servants from interference by the political directorate in their employment and job security through the mechanism of service com­ missions.34 These commissions undertake the appointment of civil servants and regulate their transfer, discipline and termination.

7-006

4. The Doctrine Expressed and Implied in the Constitutional Texts

(a) Bata Shoe and Hinds The first occasion on which the Privy Council declared a law void for incon­ sistency with a Caribbean constitution was Hinds v J?35 in 1976, and this on the basis that the Jamaica Gun Court Act 1974 violated the separation of powers doctrine. Facing an upsurge in violence, Jamaica introduced a number of anti-crime laws, including the Gun Court Act which dealt with firearm offences.36 The law created a Gun Court with three divisions, one of which was a Full Court Division to be manned by three resident magistrates. This court could hear all firearm offences along with any other offence com­ mitted by detainees under the Act, except capital offences—-that is, murder and treason. Its jurisdiction therefore included serious non-capital offences. The effect of these provisions was that resident magistrates were given an The Federalist Papers (Clinton Rossiter ed, Penguin Books, 1961), p.300; Richard Albert, “Presidential Values in Parliamentary Democracies” (2010) 8 ICON 207. 33 Hinds v AG (1915) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam). 34 Ang Const Cap VI; A&B Const Cap VII; Bah Const Cap VIII; Bds Const Cap VIII; Bze Const Pt. VIII; Ber Const ss.81 4; BVI Const Cap 7; Dom Const Cap VI; Gren Const Cap VI; Guy Const Title 7; Jam Const Cap IX; Mont Const Pt. VII; SKN Const Cap VII; SLU Const Cap VI; SVG Const Cap VI: TT Const Cap 9; TCI Const Pts VI, VII. See below para.7 032. 35 Hinds v R (1975) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam). 36 See R.H. Hickling, “The Jamaican Gun Court Act” (1974) 16 Malaya L. Rev. 16 248; Paul Gendreau and C. Thomas Surridge, “Controlling Gun Crimes: the Jamaican Experience” (1978) 1 International Journal of Criminology and Penology (1978) 43; William Calethes. “Gun Control in a Developing Nation: The Gun Court Act of Jamaica" (1990) 14 International Journal of Comparative and Applied Criminal Justice 317.

7-007

102

I'm

D ISJklBI

I I O N A M ) SI P A R A I I O N ( 1) f i ( >VI R N M I N I A ! m W l - . K S

enlarged jurisdiction to try offences previously triable only on indictment before a judge of the Supreme Court and which carried penalties extending up to life imprisonment. By a majority, the Privy Council invalidated those provisions of the Act which created the Full Court Division. Delivering the judgment of the Board, Ford Diplock accepted that Parliament is free to create new courts. 1lowcvcr, the provisions of the Gun Court Act relating to the 1 till Court Division were void because they purported to vest in a court composed of members ol the lower judiciary, a jurisdiction that formed part of the existing jurisdiction of the higher judiciary. Members of the lower judiciary did not enjoy the same security of tenure and protection for their independence as those of the higher judiciary. The new court thus deprived those in Jamaica of the safeguard of having serious and substantial questions affecting their civil or criminal responsibilities determined by a court whose independence from local pres­ sure was constitutionally guaranteed in more absolute terms. l he Gun Court Act fell afoul of the separation of powers doctrine in another way. Under the Act, persons convicted of certain olfenees were to receive a mandatory sentence of detention during the Governor General’s pleasure. The actual length of any such sentence would be determined by a Review Board composed of five persons, only one of whom was a member of the judiciary. In effect, the Board would be undertaking the function of sen­ tencing in individual eases, the province of the judiciary. Since the members of the Review Board were not appointed in the manner provided by the Constitution for judicial appointments, this provision was held to constitute an impermissible transfer of judicial power to the executive. fn a first-instance decision given six months before Hinds, Massiah J undertook a very valuable exploration of the separation of powers doc­ trine. In Bata Shoe Company v Commissioner o f Inland Revenued' several companies challenged the constitutionality of a scries of lax Acts. One of the provisions challenged required persons desirous of appealing against a tax assessment to lodge with the Commissioner of Inland Revenue, as a pre-condition, two-thirds of the tax claimed. For further appeals to a judge in chambers the legislation required that the whole of the tax claimed be deposited. The plaintiffs argued that this requirement fettered a taxpayer’s light to approach the court, which violated the doctrine of separation of powers. The claim did not succeed. On this issue, Massiah J held that the deposit requirements a pre-requisite to the commencement of proceedings and therefore anterior to the commencement of the judge's functions merely impacted on the definition of the assigned jurisdiction and not on its subsequent exercise. In the determination of the issues the judge would in no way be hindered by the executive, and so the deposit requirements did not constitute an invasion of the judicial sphere. Since the right of appeal was created by statute, it was equally possible for that statute to enact terms and conditions controlling its exercise. In addressing the arguments based on the separation of powers. Massiah J made the pioneering observation that the doctrine as initially conceived of by Montesquieu was “somewhat inconsistent” with the actual separation of 1 lialu Shoe Company r CIR CiY 1975 HC’ 3 (C A R I1 .A W ) January 15, 1975 (H C Ciuy). affirmed (1976) 24 W .I.R . 172 (C A Guy).

4. I f IF D O C T R IN E E X P R E S S E D A N D IM P L IE D IN L IIF C O N S T IT U T IO N A L T E X E S

303

functions provided for in the Constitution of Guyana.38 Massiah J acknowl­ edged the reality of the doctrine’s blurred edges, suggesting that what is permissible in terms of overlap is really a question of degree. He posited that only when the whole of the power of one branch is exercised by another is there a subversion of the doctrine. But anything more exacting would be unworkable, for it is “impossible to secure a rigid separation of powers in modern government where the entire process requires co-operation to achieve desired goals”.39 Massiah J concluded that the “amplitude of the State’s tax-gathering powers cannot be whittled down by vague and some­ what unsettled constitutional theories.”40 This did not mean that in con­ temporary times the doctrine is without value or meaning, but rather, in determining its specific contours “idealistic fervour seems to have given way to empiricism.”41 (b) The structure of the constitutions In Bata Shoe, the separation of powers doctrine was implied from “the way our Constitution is structured, the functions of each arm of government being prescribed in a separate and distinct chapter.”42 Separate chapters in the constitutions deal with each of the three main functions of government. The doctrine is to be implied from the fact that the constitution expressly vests legislative power in the legislature, judicial power in the judiciary, and executive power in executive, with the necessary implication that none shall usurp the power of the other.43 The seminal Hinds case articulated a similar approach. Relying in part on the “evolutionary” nature of Caribbean consti­ tutions, Lord Diplock attributed significance to their structure, positing that “the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government.”44 This approach has been repeatedly endorsed around the Commonwealth. The point was made as far back as the Boilermakers’ case, where the Privy Council reasoned that the fact that the Australian Constitution “is based upon a separation of functions of government is clearly to be seen in its structure, which closely follows the model of the American Constitution.”45 More recently, identical reasoning has prevailed in Mauritius46 and South Africa.47 With separate chapters of the constitutions vesting legislative, executive and judicial powers in the respective institutions, the necessary 3S Buta Shoe, above, at32. ^ Bata Shoe, above, at32 33. 411 Bata Shoe, above, at36. 41 Bata Shoe, above, at32. 4’ Bata Shoe, above, at34. 43 Bata Shoe, above, at32- 34. 44 Hinds v R (1975) 24 W.I.R. 326 at 331; [1977] A.C. 195 (PC Jam) at 212. 43 AG for Australia v R [1957] A.C. 288 (PC Aus). 46 Almee v DPP [1999] 2 A.C. 294 (PC Maur) at 302 04. 47 South African Personal Injuries Lawyer v Heath [2000] Z.A.C.C. 22; 2001 (1) SA 883; [2001] 4 L.R.C. 99 (CCSA) at [21],

7-008

304

T H E D IS T R IB U T IO N A N D S E P A R A T IO N Ol- G O V E R N M l N T A I PO W ERS

implication of the doctrine is that each has the powers it needs to effectively perform its core functions and none will usurp the power of the other.48 (c) History and tradition 7-009

History and tradition played a central role in anchoring the inference of the separation of powers doctrine from the structure of Caribbean constitutions. Hinds pointed out that not everything in a constitution is reduced to writing. That case took it for granted that the doctrine of separation of powers could be readily implied from both the historical practices of these states com­ bined with the desire for continuity of government. Lord Diplock described the constitutions as “evolutionary not revolutionary” instruments.49 It was assumed that because Caribbean constitutions were “negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England” that they incorporated in Caribbean constitutions the “basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the UK”.50 Put another way, it was assumed that the basic features of the UK Constitution were incorpo­ rated into Caribbean constitutions, which sought to model the arrangements at Westminster. The successor institutions “remained of a similar character” and faithful to those institutions it had replaced, according to Hinds.51 Thus both imperial and colonial constitutional law and practice served as gap-fillers in the Anglophone Caribbean’s post-colonial constitutions in Hinds.51 Lord Diplock’s expansive read of decolonisation constitutions and use of “Westminster model” as a gap-filler in Caribbean constitutional law have been treated with scepticism.53This is not least because the Westminster system is hardly an example of strict separation of powers. Substantial overlap exists between the legislative and executive branches, not merely in their composition, but more profoundly in the interdependent relationship that exists between them. The executive is reliant on parliamentary support while simultaneously driving the latter’s agenda, and neither branch can survive without maintaining the confidence of the other.54 (d) The rule of law and democracy

7-010

The separation of powers doctrine complements other fundamental consti­ tutional principles like the rule of law and democracy. It is routinely hailed as a safeguard that ensures that the state’s enormous coercive powers are not concentrated in one body or individual and as a way of preventing absolut­ ism which, by definition, conduces to unrestrained excess and abuse.'12 The 48 Almee v DPP [1999] 2 A.C. 294 (PC Maur) at 302 04. 49 Hinds v R (1975) 24 W.I.R. 326 at 331; [1977] A.C. 195 (PC Jam) at 235. 5(1 Hinds, above. 51 Hinds, above. See above para.3 007. 53 Tracy Robinson, “Our Inherent Constitution" in David Berry and Tracy Robinson (eds), Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing, 2013), p.248. 53 See above para.3 -008. 84 O. Hood Phillips, “A Constitutional Myth: Separation of Powers" (1977) 93 LQR 11. 55 Director of Personnel Administration v Cooper TT 2005 CA 5(CARILAW)

4. T IIK D O C T R IN E E X P R E S S E D A N D IM P I IF D IN T H E C O N S T IT U T IO N A L fL X 'l'S

305

diffusion of governmental powers is regarded as a means of ensuring that each one acts as a check and balance on the other,56 thereby promoting accountability in government57and ultimately “essential values of law, liberty and democracy”.58 In BCB Holdings Ltd v AG,59 at issue was a settlement deed incorporating a special tax regime in favour of the plaintiff company. After the agreement was repudiated by a subsequent administration, the CCJ refused to enforce it since it had never been approved by Parliament. The court deplored the secrecy of the negotiations, along with the appro­ priation of powers by the executive which rightfully had to be exercised by Parliament. It noted that in “young States especially, keen observance by the courts of the separation of powers principle remains vital to maintaining the checks and balances that guarantee the rule of law and democratic governance.”60 The court added, in highlighting the dangers of unrestrained powers reposed in one branch, that “Prime Ministerial governance, a paucity of checks and balances to restrain an overweening executive, these are malignant tumours that eat away at democracy.”61 (e) The protection of the law and due process clauses The doctrine of separation of powers is associated both with the structure of the constitutions as well as specific provisions in them.62 One of latter is the due process clause63 or what is described in most constitutions as the right to the protection of the law.64 This clause, found in Caribbean bills of rights, makes provision for procedural fairness and is a core dimension of the constitutional guarantee of the rule of law.65 In Thomas v Baptiste,66 the right to due process of law, contained in s.4(a) of the Constitution of Trinidad and Tobago, was held to underpin the doctrine of separation of powers. Lord January 19, 2005 (CA TT); R v Peart JM 2003 CA 53 (CARILAW) December 19, 2003 (CA Jam) at 13. 56 AG v Trinidad and Tobago Civil Rights Association TT 2007 CA 31 (CARILAW) July 18, 2007 (CA TT) at [25], 37 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Caribbean Law Publishing Co, 2002), p. 125. 38 McIntosh, above, p.165. See AG v Zuniga [2014] CCJ 2; (2014) 84 W.I.R. 101 (CCJ Bze) at [40], 59 BCB Holdings Ltd v AG[ 2013] CCJ 5; (2013) 82 W.I.R. 167 (CCJ Bze). 60 BCB Holdings Ltd, above, at [42]. 61 BCB Holdings Ltd, above, at [53]. 62 South African Personal Injuries Lawyer v Heath [2000] Z.A.C.C. 22; 2001 (1) SA 883; [2001] 4 L.R.C. 99 (CCSA) at [21], 63 TT Const s.4(a); Jam Const s. 13(3)(r). 64 Ang Const s.9; A&B Const s.15; Bah Const art.20; Bds Const s. 18; Bze Const s.6; Ber Const s.6; BVI Const s. 16; Cl Const s.7; Dom Const s.8; Gren Const s.8: Guy Const art. 144; Mont Const s.7; SKN Const s. 10; SLU Const s.8; SVG Const s.8; TCI Const s.6. See also Lewis v R (2000) 57 W.I.R. 275; [2001] 2 A.C. 50 (PC Jam) which equates due process with protection of the law. 65 See above para.6-008. 66 Thomas v Baptiste (1998) 54 W.I.R. 387; [2000] 2 A.C. 1 (PC TT).

7-011

306

1 I l h D IS T R IB IJ 1'ION A N D S F P A K A l IO N O F G O V F R N M H N T A L l ’OW I RS

Millctt, giving the decision of the Board, concluded that ‘’the due process clause excludes legislative as well as executive interference with the judicial process”.67 He added that it originated to protect the subject from “absolute monarchy and the exercise of arbitrary executive power”.68 By tracing the lineage of the due process clause to the Magna Carta in 1354, the Privy Council showed its concern with containing executive excess and arbitrari­ ness. Lord Millett maintained that the due process clause served the identical purpose in the American Constitution, anchoring the doctrine of separation of powers and operating as a safeguard for citizens. (f) Protection for the independence of the judiciary 7-012

In parliamentary systems where the legislature and executive are so closely aligned, ensuring judicial independence from the other organs of government is perceived as a pre-eminent function of the doctrine.69 This has an impor­ tant intra-branch dimension as well, in that serious criminal jurisdiction and powers cannot be entrusted to members of the lower judiciary who do not enjoy substantial constitutional protection of their independence. Such pro­ tections include “independence from political pressure by Parliament or by the Executive in the exercise of their judicial functions”, achieved through a variety of mechanisms designed to facilitate their security of tenure.70 5. Control of Legislative Power (a) Parliament has control over its internal proceedings

1»

7 013

The separation of powers doctrine has contributed to the development of the law of parliamentary privileges.71 Parliament possesses important privi­ leges to protect it from outside interference. These privileges are justified as necessary to ensure its efficient operation as the primary law-making body.72 Without such privileges, it has been argued that “Parliament would sink into utter contempt and inefficiency.”73 The courts can examine whether a claimed privilege or power exists, and if so, its extent. If the privilege is found to exist, the courts cannot interfere in the manner of its exercise.74 One impor­ tant privilege enjoyed by Caribbean Parliaments is the power to control its internal affairs.75The courts will only intervene in the internal proceedings of 67 Thomas, above, at [21], 68 Thomas, above. 69 DPP v Mollison (No. 2) (2003) 64 W.I.R. 140. [2003] 2 A.C. 411 (PC Jam) at [131; South African Personal Injuries Lawyer v Heath [2000] Z.A.C.C. 22: 2001 (1) SA 883; [2001] 4 L.R.C. 99 (CC SA) at [23] [26] per Chaskalson P. 79 Hinds v R (1975) 24 W.I.R. 326 at 336; [1977] A.C. 195 (PC Jam) at 219. 71 Douglas Mendes, "An Appreciation of Ralph Carnegie’s 'Floreat the Westminster Model? A Commonwealth Caribbean Perspective”’ (UWI Faculty of Law, Faculty Workshop Scries, Barbados, October 22, 2010) at 11. 72 Canada ( House of Commons) v Void [2005] 1 S.C.R. 66 (SC Can). 73 Jagan v Gajraj (1963) 5 W.I.R. 333 (CA Guy). 74 Jagan, above. 75 Ang Const s.49; A&B Const s.57; Bah Const art.55; Bds Const s.50; Bze Const s.70: Ber Const s.45; BVI Const s.72; Cl Const s.71; Dom Const s.52; Gren Const s.50: Guy Const art. 165:

5. C O N T R O L O F L E G IS L A T IV E PO W FR

307

Parliament if there is a clear breach of the provisions of the constitution.76 In Hughes v Rogers,11 an action was brought against the Speaker of the House of Assembly who refused to call the House to order because he determined that there was no quorum. The trial judge concluded that those decisions formed part of the internal proceedings of the House, did not amount to an infringement of the Constitution, and were immune from judicial scrutiny. Intervention by the courts, he said, would compromise the “respect and prestige” of the House of Assembly and “open the courts to ‘a blizzard of applications relating to parliamentary procedure and invite conflict between the legislature and the judiciary.’”78 He added that “[ajlleged irregularities in the conduct of parliamentary business are a matter for Parliament alone,” and that this was “essential to the smooth working of a democratic society which espouses the separation of power between a legislative Parliament, an executive government and an independent judiciary.”79 In Bahamas Methodist Church v Symonette,80 the Privy Council reiterated these principles. This case was prompted by the split up of the Methodist Church in the Bahamas. A division between the old and new Methodist church and its property was effected through a Private Bill. Under the bill, all the property of the church would be transferred to and vested in the new church for the benefit of either the participating churches (including the new church) or the non-participating ones, which were those remaining in the existing system. The internal rules of Parliament provided that no private bill should be introduced unless it was in response to a petition, at which point evidence of advertisement of the petitioner’s intention in at least two newspapers had to be produced. The non-participating churches unsuccess­ fully sought to invalidate the bill on the ground that Parliament did not follow these rules. While the doctrine of constitutional supremacy required the courts to ensure that there was no violation of the constitution in enact­ ing legislation, here none was found. Lord Nicholls said that the courts must “be ever sensitive to the need to refrain from trespassing, or even appear­ ing to trespass, upon the province of the legislators”.81 The courts have to respect the separate functions of each organ and they should not interfere where Parliament failed to follow its own internal procedures.

Jam Const s.51; Mont Const s.72; SKN Const s.44; SLU Const s.53; SVG Const s.45; TT Const s.56; TCI Const s.63. 76 Subaroche v the Speaker o f the House of Assembly (1999) 60 W.I.R. 235, (1999) 3 L.R.C. 584 (CA Dom); Hughes v Rogers AI 2000 HC 1 (CARILAW) January 12, 2000 (HC Ang); Bahamas Methodist Church v Symonette (2000) 59 W.I.R. 1, [2000] 5 L.R.C. 196 (PC Bah); Toussaint v AG [2007] UKPC 48, (2007) 70 W.I.R. 167 (PC SVG). 77 Hughes v Rogers AI 2000 HC 1 (CARILAW) January 12. 2000 (HC Ang). 78 Hughes, above. 79 Hughes, above. 80 Bahamas Methodist Church v Symonette (2000) 59 W.I.R. 1; [2000] 5 L.R.C. 196 (PC Bah). 81 Bahamas Methodist Church v Symonette (2000) 59 W.I.R. 1 at 13; [2000] 5 L.R.C. 196 (PC Bah)at 208.

308

1 IIF D IS T R IB U ‘1 IO N A N D S E P A R A T IO N OF (iO V h R N M l .N 1A L PO W ERS

(b) Parliament must maintain effective control of powers it delegates 7-014

There is no strong separation between legislative and executive power in the Anglophone Caribbean. While the power to make laws is constitutionally vested in Parliament, there can be a voluntary redistribution of powers.82 Flossiac CJ in Astaphan v Comptroller o f Customs83 recognised that “the delegation or transfer of legislative power by the legislature to the execu­ tive is not per se inconsistent with the principle” of separation of powers, provided that the legislature “retains effective control” of its powers.84 Effective control is maintained if the legislature limits the power or estab­ lishes guidelines or a policy for its exercise.85 Courts police the boundary between legislative and executive power through judicial review of executive action.86 Caribbean courts have a duty “to strike down administrative or executive action that exceeds jurisdiction or undermines the authority of the legislature”.87 The power to delegate legislative authority to the executive is justified on the bases of both necessity and constitutional efficacy. As the complexity of modern regulation increases, law-making correspondingly requires highly specialised knowledge and experience.88 Additionally, the sheer volume of regulation to be undertaken means that if Parliament were to monopolise leg­ islative powers, it could easily become overwhelmed and unable to function efficiently.89 Consequently, delegation of legislative authority to appropriate executive bodies which are concerned with the actual implementation of the law is both a rational and efficient allocation of functions.90 Those bodies encompass a wide spectrum, including ministers, civil servants in government departments, municipalities, public bodies, and even the Cabinet as a whole. Legislative power is also delegated to judges to establish various procedural rules of the courts, as is the case with the express delegation of power to the Chief Justice to make rules of procedure governing applications for the enforcement of fundamental rights.91 Parliamentary control of delegated legislative power is secured by various devices. These include requirements such as having to lay delegated legislation 82 Ronald Krotozznski Jr, “The Separation of Legislative and Executive Powers” in Tom Ginsburg and Rosalind Dixon (eds) Comparative Constitutional Law (Edward Elgar. 2011). p.239. 83 Astaphan v Comptroller o f Customs ( 1996) 54 W .I.R. 153; ( 1999) 2 L.R.C. 569 (CA Dom). 84 Astaphan v Comptroller of Customs (1996) 54 W .I.R. 153 at 157: (1999) 2 L.R.C. 569 (CA Dom) at 575. 85 Astaphan, above. 86 Ronald Krotozznski Jr, “The Separation of Legislative and Executive Powers” in Tom Ginsburg and Rosalind Dixon (eds) Comparative Constitutional Law (Edward Elsar, 2011), p.243. 87 BCB Holdings Ltd v AG [2013] CCJ 5; ( 2013) 82 W.I.R. 167 (CCJ Bze) at [42]. 88 Executive Council of the Western Cape Legislature v President o f the Republic oj South Africa 1995 (4) SA 877, (1995) SACLR 274 (CC SA) at [51] per Chaskalson P. 89 Hilaire Barnett, Constitutional and Administrative Law, 9th edn (Routledge, 2011), p.318. 90 William Wade and Christopher Forsyth, Administrative Law, 8th edn (OUP. 2000), p.839. 91 Ang Const s. 16( 6); A&B Const s. 18( 6); Bze Const s.20( 8); Dom Const s. 16( 6); Gren Const s. 16( 6); SKN Const s. 18(6); SLU Const s . 16( 6); SVG Const s . 16( 6).

5. CONTROL OF LEGISLATIVE POWER

309

in Parliament, to obtain an affirmative vote,92 and invariably to publish it once laid and/or approved.93 Delegated legislation requiring an affirmative vote will facilitate further debate and therefore an opportunity to scrutinise the provisions. Though simple, the requirement merely to lay the delegated legislation in Parliament allows members to question the responsible min­ ister.94 Where pre-conditions are merely directory non-compliance will not affect the legislation’s validity,95 but failure to conform to mandatory require­ ments will render subsequent legislation invalid and unenforceable.96 Parliament’s power to delegate its core functions like law-making is not unfettered but is subject to certain constitutional requirements. In general, delegated legislation cannot amend or otherwise conflict with the parent Act.97 The South Africa Constitutional Court has held that to delegate to the executive the power to amend or repeal Acts of Parliament is subversive of the mandatory scheme laid down in the Constitution for the amendment of laws.98 Another core function of a legislature is the power to tax.99 If Parliament delegates this function to the executive, it must impose clear guidelines or a policy for its exercise. In Astaphan v Comptroller o f Customs,100 the Eastern Caribbean Supreme Court (ECSC) Court of Appeal invalidated customs legislation which failed to meet this requirement. The law in ques­ tion allowed an importer clearing goods, who was unable to perfect entry of his or her imports because of lack of information or documentation, to take delivery of the goods on payment of a “specified sum”. That specified sum comprised the customs duty due as well as “such further sum” as required by the customs officer. To the extent that the “further sum” amounted to a tax, it was a delegated legislative power. Though the legislature could repeal the law or revoke this authority, this was viewed as an ineffective form of control because it would operate after the fact. To be meaningful, legislative controls must be in place at the time of the exercise of the power, before it potentially can be abused by the executive.101 The “further sum” was a violation of the separation of powers doctrine because it lacked guidelines for its determina­ tion. The Court of Appeal held that this amounted to “a surrender or abdica­ tion by the legislature of Dominica of part of it legislative power”.102 92 William Wade, and Christopher Forsyth, Administrative Law, 8th edn (OUP, 2000), p.878. 93 Gatherer v Gomez (1992) 41 W.I.R. 68 (PC Bds); COP v Cavanaugh [2005] UKPC 28 (PC Mont). 94 William Wade and Christopher Forsyth, Administrative Law, 8th edn (OUP, 2000), p.879. 95 Rose-Marie Antoine, Commonwealth Caribbean Law and Legal Systems, 2nd edn (Routledge Cavendish, 2008), pp.239-40. 96 Kelshall v Pitt (1971) 19 W.I.R. 136 (CA TT); Gatherer v Gomez (1992) 41 W.I.R. 68 (PC Bds). 91 A G v Barker (1984) 38 W.I.R. 48 (HC Bds). 98 Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877, (1995) SACLR 274 (CC SA) at [62] per Chaskalson P. 99 IRC v Lilleyman (1964) 7 W.I.R. 496 (CA BG). 100 Astaphan v Comptroller o f Customs (1996) 54 W.I.R. 153; (1999) 2 L.R.C. 569 (CA Dom). Sec Tracy Robinson, "Judicial Review of Legislation, Separation of Powers, and Restitutionary Remedies under the Constitution: Astaphan & Co. Ltd. v The Comptroller of Customs” [1997] 12 UWI Student Law Review 121. 101 Above, at 157- 58. 102 The Court of Appeal also considered the possibility that the “further sum” was a penalty.

310

11II- DISTRIBUTION A N D SEPARATION Ol OOVHRNMHNI AI. l’O W IRS

In BCB Holdings v AG,m the CCJ emphasised the importance of legislative control over its core functions. The executive cannot arrogate unto itself leg­ islative functions like taxation. Exceptions from the tax regime are properly matters for the legislature. Saunders J accepted that the doctrine “may have lost some of its lustre” as it relates to a separation of legislative and executive powers.104 Still he insisted that it was “erroneous to assume that there is not an important division between the functions performed by each branch.”I(h In this case the Government of Belize made a deed in 2005 with two compa­ nies providing that the company should enjoy a specially crafted tax regime that was at odds with the tax laws of Belize. The deed was honoured for two years, until a new administration repudiated it in 2008. The companies began arbitration before the London Court of International Arbitration, which decided that Belize should pay substantial damages to the companies for dishonouring the commitments made in the 2005 deed. The companies then turned to the Belize courts to enforce the arbitral award in their favour. The CCJ refused to enforce the arbitral award on the ground of public policy. It stressed that the power to make laws and tax was constitutionally vested in the National Assembly, and that only this body could lawfully grant excep­ tions to the country’s revenue laws.106 The CCJ observed that it “would be utterly disastrous if the executive could do so, [arrogate legislative powers] selectively, via confidential documents.” 107 Even though the executive in the course of business could promise to make derogations from the revenue laws in favour of public or private bodies, such promises had to be sanctioned by Parliament before they could be implemented. The CCJ strongly condemned the actions of the executive: “To hold that pure prerogative power could entitle the Minister to imple­ ment the promises recorded in the Deed without the cover of parliamen­ tary sanction is to disregard the Constitution and attempt to set back, over 300 years, the system of governance Belize has inherited and adopted.”108 (c) Judicial review of legislation pennitted with limits 7-015

Superior courts have the power and duty to review legislation that is not in conformity with the constitution as an aspect of the supremacy of the constitution.109 Nonetheless, this role for superior courts does not confer on them an unrestrained power to interfere, for the power of review has limits. In Bahamas Methodist Church,110 Lord Nicholls explained that the courts In this instance, it amounted to a breach of the constitutional right not to be subjected to a com­ pulsory acquisition of property without compensation which provided that penalties can only be imposed for breaches of law. If there was a breach of law, then the further sum would lie in violation of the separation of powers doctrine: this time because it transferred the power granted lo the judiciary to determine penalties to the executive. 110 BCB Holdings Ltd v AG [2013] CCJ 5; (2013) 82 W.I.R. 167 (CCJ B/e). 1114 BCB Holdings Ltd, above, at [42], 11,5 BCB Holdings Ltd, above. KI6 n 0i({ings Ltd, above, at [43]. 107 BCB Holdings Ltd, above, at [42]. ms Holdings Ltd, above, at [44]. See also [57] [59]. 1,19 See above paras 4 005, 5 001 5 002. 1111 Bahamas Methodist Church v Symonette (2000) 59 W.I.R. 1; [2000] 5 L.R.C. 196 (PC Bah).

5. CONTROL OF LEGISLATIVE POWER

311

will, if needed, declare legislation to be inconsistent with the constitution in interpreting and applying the Constitution as the supreme law, but “[t]hat function apart, the duty of courts is to administer Acts of Parliament, not to question them.”111 Reviewing legislation before it is enacted is an even more invasive encroachment on the legislative role. It is theoretically pos­ sible under the constitutions, which permit applications for redress in respect of apprehended breaches of any of the guaranteed rights. However, this jurisdiction is not commonplace, and the Privy Council has indicated that although available, it should only be used in exceptional cases.112 Judges have invoked the separation of powers in order to decline jurisdic­ tion to review legislation on the basis that it is the role of the legislature to enact laws, to which end it is backed by the resources, competence and, not least of all, the democratic legitimacy. From this perspective, it is the judici­ ary’s role to interpret those laws and ensure they are respected and applied. Where this view prevails, it operates as a self-imposed restraint on the power of judicial review, de la Bastide CJ in Roodal v StateUi expressed the view that the abolition of the mandatory death penalty in Trinidad and Tobago was a matter for the legislature. He explained the advantages of a legislative determination of this question, including that the legislature could decide on details such as the role it wished judge and jury to play in relation to a dis­ cretionary sentence.114 On further appeal to the Privy Council, Lord Steyn’s made a pointed rejoinder to de la Bastide CJ that judicial review is a respon­ sibility placed on the courts by the constitution itself.115 He added that: “It is not a responsibility which the courts may shirk or attempt to shift to Parliament. Loyalty to the democratic legal order of the Constitution required the Privy Council to grapple with the question before it and to decide it.’116 Soon thereafter, the Chief Justice was vindicated. A year later, the Privy Council overruled its decision in Roodal, holding that the general savings law clause was a thorough impediment to constitutional review of the manda­ tory death penalty.117 Nevertheless, the “debate” between these senior judges highlights a paradox of the doctrine: separation of powers can simultane­ ously be invoked to discredit the power of judicial review as an invasion on the legislative function, and to defend it as well, as one of the checks and balances among the three branches.118

111 Bahamas Methodist Church v Symonette (2000) 59 W.I.R. 1 at 14; [2000] 5 L.R.C. 196 (PC Bah) at 208. " 2 Bahamas Methodist Church v Symonette (2000) 59 W.I.R. 1 at 14 15; [2000] 5 L.R.C. 196 (PC Bah) at 209. See above para.5 -012. 113 Roodal v State [2003] UKPC 78; (2003) 64 W.I.R. 270; [2005] 1 A.C. 328; [2004] 2 W.L.R. 652; [2004] 1 L.R.C. 213 (PC TT) at [34], 114 Roodal, above, at [34], 115 Roodal, above, at [34]. 116 Roodal, above, at [34], 117 Matthew v State [2004] UKPC 33; (2004) 64 W.I.R. 412; [2005] 1 A.C. 433 (PC TT). See above para.5 024. 118 Albert Fiadjoe, Commonwealth Caribbean Public Law, 3rd edn (Routledge Cavendish. 2008), p.56.

312

Mil DISTRIBUTION A N D SFIWRA'HON Ol GOV! RNM1 N1A I POW IRS

(d) Treaties must be incorporated into domestic legislation 7-016

One consequence attributed to the separation of powers concerns the dis­ tinction between entering into and enforcing international treaties. These are regarded as separate acts which fall to separate organs of government. Historically, the right to enter into and ratify treaties is that of the executive as an aspect of the Crown’s prerogative powers.119 Ratified treaties establish international obligations but are not binding on the domestic level unless incorporated into law' by the legislature, which is effected through the enact­ ment of legislation.120This distinction is defended as arising from the separa­ tion of powers on the basis that it is the function of the legislature to make laws, and it is not within the competence of the executive to change the law “by the exercise of its powers under the prerogative.” 121 With two exceptions,122 Anglophone Caribbean constitutions are silent on the issue of the status of treaty law. This provoked a blistering critique of the conventional position by Wit J, who pointed out in relation to the Barbadian Constitution that its definition of law is a general one,123which does not exclude international law as a matter of principle.124He added that the Constitution does not confer exclusive law-making power on the legislature since this is a function constitutionally exercised by the other branches of government the executive through the formidable quantity of subsidiary legislation it makes, and the judi­ ciary by virtue of its role in “developing” the common law.125This led Wit J to the conclusion that the Barbados Constitution has not slavishly adopted the common law orthodoxy regarding the unenforceability of ratified but unincor­ porated treaties in the domestic plane -a conclusion strengthened by “the reali­ ties of constitutional democracy in the Commonwealth Caribbean”, which “do not reflect the degree of separation between the executive and legislative powers that would justify such an absolute approach.”126 Reinforcing the criticisms of Wit J are the lengths to which courts have gone to avoid the doctrine, even while perfunctorily paying it homage. While ratified but unincorporated treaties are not enforceable in domestic law, there are multiple ways in which they may be and are indirectly applied. One of these is through a presumption of statutory interpretation that Parliament will not legislate so as to make the executive violate its international obligations.127 119 Higgs v Minister of National Security ( 199S) 55 W.I.R. 10, [2000] 2 A.C. 228. [2000] 2 W.L.R. 1368 (PC Bah); BCB Holdings Ltd v AG [2013] CCJ 5, (2013) 82 W l.R. 167 (CCJ B/e) at [69] per Anderson J. See above para.2 005. 120 Thomas v Baptiste (1998) 54 W.I.R. 387, [2000] 2 A.C. 1 (PC TT) at [26] per Lord Millett; AG v Joseph [2006] CCJ 3, (2006) 69 W.I.R. 104. [2007] 4 L.R.C. 199 (CCJ Bds) at [55] per de la Bastide P and Saunders J. See above para.3 026. 121 Higgs v Minister of National Security (1995) 55 W.I.R. 10 at 17 18: [2000] 2 A.C. 228 (PC Bah). See also Douglas Mendes,"An Appreciation of Ralph Carnegie's ‘Florcat the Westminster Model? A Commonwealth Caribbean Perspective’" (Faculty of Law UWI. Faculty Workshop Series, Barbados, October 22, 2010), pp.9 10. 122 Bze Const, s.61A(2)(a); Guy Const, arts 39(2), 154A. See also above para.3 027. 121 Bds Const s. 117(1). 124 AG v Joseph [2006] CCJ ; (2006) 69 W.I.R. 104 (CCJ Bds) at [40] per Wit J . 125 Joseph, above, at [41]. 126 Joseph, above, at [42], 127 Iliggs v Minister of National Security (1995) 55 W.I.R. 10 at 17; [2000] 2 A.C. 228 (PC Bah) at 241.

6. CONTROL OL JUDICIAL POWFR

313

Thus where legislation is ambiguous, courts will, where possible, interpret it consistently with the state’s international treaty obligations.128 Another route is that a ratified but unincorporated treaty may give rise to a legitimate expec­ tation by citizens than in its dealings with them, and in the absence of express statements to the contrary, the state through its “administrative decision­ makers will act in conformity” with the terms of the said treaty.129 The fact of these separate roles does not mean that in legislating, Parliament cannot look to international law—including even unratified trea­ ties—for inspiration. In BCB Holdings Ltd v AG,]3° the CCJ agreed with the dissenting judgment of Mendes JA in the Belize Court of Appeal that the plenary power of the legislature meant that it could legislate for Belize to give effect to a treaty to which the country was not yet bound. Doing so was within the competence of the legislature to make laws for the country; a key point in establishing the legitimacy of its legislation was that in so doing, no attempt was made by the legislature to trespass on the power of the executive in foreign affairs.131 Anderson J mused that ideally, both acts of entering into and enforcing a treaty would occur at the same time, but an unusual sequence of legislative enactment before executive ratification could not “displace the constitutional competence in the legislature to enact incorporating legislation.”132 6. Control of Judicial Power (a) A jealously-guarded jurisdiction The doctrine of separation of powers accords the strongest emphasis to the 7-017 separation of judicial functions from those of the executive and legislature.133 In DPP v Mollison, 134 Lord Bingham underlined this by saying: “Whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers, the separa­ tion between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so.”135 The pre-eminence accorded to ensuring judicial independence by the doc­ trine is due to the close interplay between, and mutual interdependence of, the legislative and executive branches. The overlaps create the opening for the judiciary to provide balance, thereby promoting the rule of law and 128 R v Home Secretary, Ex p. Brind[ 1991] 1 A.C. 696 (HL). py Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 C.L.R. 273 (HC Aus) at [34] per Mason CJ and Deane J); AG v Joseph [2006] CCJ 3, (2006)69 W.I.R. 104 (CCJ Bds). ,3'’ BCB HoldingsLtd v AG [2013] CCJ 5; (2013) 82 W.I.R. 167 (CCJBze). 131 BCB Holdings Ltd, above, at [72]. 132 BCB Holdings Ltd, above, at [75]. 133 See Bata Shoe Company v CIR GY 1975 HC 3 (CARILAW) January 15. 1975 (HC Guy) at 34 per Massiah J. See also Albert Fiadjoe, Commonwealth Caribbean Public Law, 3rd edn (Routledge Cavendish, 2008), p .158. 134 DPP v Mollison (2003) 64 W.I.R. 140; [2003] 2 A.C. 41 (PC Jam). 135 Mollison, above, at [13]. See also South African Association of Personal Injuries Lawyers v Heath [2000] Z.A.C.C. 22; 2001 (1) SA 883; [2001] 4 L.R.C. 99 (CC SA).

314

I'l IK DISTRIBUTION A N D SI'PA RATION OH (IOV1 RNMKNTA1 l’OWI US

accountability in government. Given these functions, it is very important that other institutions of government should not be able to dictate to judicial offic­ ers how to perform their functions or undermine the judiciary in any way.14(1 (b) lntra-branch judicial independence 7 018

The judicial power of superior courts should not be transferred to judi­ cial officials who lack the protection and independence of superior court judges. An essential prerequisite for maintaining a strict separation of powers between the judiciary on the one hand and the executive and legislature on the other is the preservation of the jurisdiction of the higher judiciary. It is obvious that there would be no benefit to having an independent judiciary if the executive is able to transfer judicial powers and functions to tribunals with less independence. Hinds'37 clearly articulates the intra-branch dimension of the separation of powers doctrine when it invalidated the establishment of the Full Court Division of the Gun Court on the ground that its presiding magistrates were conferred with jurisdiction to deal with serious criminal offences, which was the preserve of superior court judges who enjoyed greater protection for their independence. Lord Diplock accepted that Parliament is free to create new courts. However, any person appointed to a new court must be appointed in the same manner with the same conditions of service as those persons who exercised a similar jurisdiction at the time when the Constitution came into force. Any failure to observe this safeguard, Lord Diplock cautioned, would “make a mockery of the Constitution”.138 The Jamaica Constitution does not identify the jurisdiction that belongs to the Supreme Court which it established; this was inferred by the Privy Council.139 It reasoned that this new Supreme Court was a successor to the colonial Supreme Court that had existed since 1880. Following its earlier landmark judgment in an appeal from Ceylon,140 it explained that the new court maintained the characteristic jurisdiction of a Supreme Court which had been enjoyed by the colonial court—that is, unlimited original jurisdic­ tion in all serious crimes, unlimited original jurisdiction in all substantial civil cases, and supervisory jurisdiction over proceedings of inferior courts. The Constitution conferred on Supreme Court judges a stronger degree of independence from political pressure, particularly through their security of tenure, than that enjoyed by the lower judiciary. Lord Diplock stipulated that judicial power must “continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid out in the Chapter dealing with the judicature”.141

Ufi AG v Zuniga [2014] CCJ 2. (2014) 84 W.I.R. 101 (CCJ B/e) at [40]; iJCHR (199ft) Ltd v Marshall-Burnett [2005] UKPC 3, (2005) 65 W.I.R. 268. [2005] 2 A.C. 356 (PC Jam). 1,7 Hinds v R (1975) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam). 138 Hinds v R (1975) 24 W.I.R. 326 at 336; [1977] A.C. 195 (PC Jam) at 219. 134 Jam Const s.97. 1411 Uvanage v R [1967] 1 A.C. 259 (PC Cey). ,4' Hinds v A G ( 1975) 24 W.I.R. 326 at 332; [1977] A.C. 195 (PC Jam) at 213.

6. CON TROL OP JUDICIAL POWFR

315

In Commissioner o f Police v Davis,142 the same reasoning was applied. The legislation in question increased the maximum penalty for possession of narcotics above a certain quantity upon summary conviction to life imprison­ ment. The Privy Council held that the law was void as it entrusted magistrates with a jurisdiction appropriate only to the higher judiciary. It was no answer that after conviction by a magistrate, sentencing would be undertaken by the Supreme Court, since the defendant would not have had the opportunity of trial by jury. In those circumstances, the determination of guilt for a serious offence would be entrusted to members of the lower judiciary, which on the authority of Hinds was equally offensive. If ordinary legislation divests the superior courts of its supervisory juris­ diction over subordinate courts, it also violates the separation of powers doctrine. Section 17(4) of the Antigua and Barbuda Industrial Court Act 1976 insulated decisions of its Industrial Court from appeal, review or being called into question in any way. This section was severed from the Act on the ground that it divested the Supreme Court of its supervisory jurisdiction. It was held that the Industrial Court could only operate constitutionally if its decisions were subject to review by the High Court.143 The strict approach to preservation of the jurisdiction of the higher judici­ ary reached a high point in litigation emanating from the attempted removal of the Privy Council as the final court of appeal for Jamaica and substitut­ ing in its place the CCJ. In IJCHR v Marshall-Burnett,144 the appellants objected on the ground that the judges of the CCJ did not enjoy the same level of entrenched protections in the Constitution that was afforded to the judges of the Supreme Court and Court of Appeal of Jamaica. The proposed change in Jamaica’s final court of appeal was introduced through three Acts of Parliament. They purported to amend s.l 10 of the Jamaica Constitution which provided for the Privy Council as the final court of appeal of Jamaica after independence. This section could be amended by an ordinary majority of all the members of each House of Parliament. The Privy Council accepted the argument that the introduction of the CCJ as a final appellate court could not be effected simply by amending s. 110 by ordinary majority. Doing so would undermine the protection afforded to Jamaicans by the entrenched provisions of Ch.YII of the Constitution, which established a regime for the higher judiciary designed to guarantee their independence from political pressure. The Privy Council concluded that the CCJ did not enjoy the protection afforded by the Jamaica Constitution to the higher judiciary in Ch. VII. The CCJ Agreement established the new court and was ratified by CARICOM countries, and made provision for a strong degree of judicial independence for CCJ judges. The concern was that provisions in the Agreement could potentially be weakened by the contracting states with minimal involvement by the Parliament of Jamaica. The Privy Council concluded that a court to which appeals would lie from the higher judiciary in Jamaica lacked the entrenched protection afforded by the Constitution to the Supreme Court and Court of Appeal.145 142 143 144 143

Commissioner o f Police v Davis (1993) 43 W.I.R. 1; [1993] 4 All E.R. 476 (PC Bah). Farrell v AG (1979) 27 W.I.R. 377 (HC A&B). IJCIIR v Mcirshcill-Burnett [2005] UKPC 3; (2005) 65 W.I.R. 268; [2005] 2 A.C. 356 (PC Jam). See above paras 4-016 4 018.

till

I ) | S I t i l lit

H O N

A M J S H ' A K

\ l l O N

I >1- ( i O V I - . K N M I

l \ l

I’ O W I K

(c) i he judiciary m u s t m a i n t a i n deci siona l a u l h o i n v in the a d j u d ic a t iv e process

(i 1 Every branch plows a role In adjudication 7 1)19

W h il e t h e d o c t r i n e o f s e p a r a t i o n o f p o w e r s en v i sa g e s t h a t th e judicial f u n c t i o n will be e n t r u s t e d to th e j u d i c i a r y , th e i m p l i c a t i o n s o f (his r e q u i r e ­ m e n t a r e n o t s t r a i g h t f o r w a r d b e c a u s e the s co p e ol the judicial fu nc ti o n c a n n o t be tidily c o m p a r t m e n t a l i s e d , f u n c t i o n s s u c h a s the de ci si on to p r o s e c u t e ( o r n o t ) , the m o d e o f trial, t h e p r o c e s s by w h ic h fact s are d e t e r ­ m i n e d a n d , p r e - e m i n e n t l y , t h a t o f p u n i s h m e n t , m a y all c o n t a i n s o m e de gr ee o f i n v o l v e m e n t b y m o r e t h a n o n e b r a n c h o f th e state. C a r e is th e re f o r e r e q u ir e d in d i f f e r e n t i a t i n g b e t w e e n a l e g i t i m a t e exercise o f p o w e r s a n d u n c o n s t i t u t i o n a l in t e r f e r e n c e o r u s u r p a t i o n by o n e b r a n c h ol a n o t h e r ' s fu n ct i o n s . A s a g en er a l rule, P a r l i a m e n t ' s c o m p e t e n c e to legislate " c a n n o t be w h i t ­ tled d o w n by v a g u e a n d s o m e w h a t un s e tt le d c o n s t i t u t i o n a l th e o rie s ' T h i s m e a n s t h a t P a r l i a m e n t is a b l e to " a b r o g a t e o r a l t e r r ig h ts a n d liabili­ ties w hic h w o u l d o t h e r w i s e be s u b je c t lo ju d i c i a l d e t e r m i n a t i o n . ” " W h e r e a n y legislative a c t a m o u n t s to a s u b s t a n t i v e c h a n g e in th e law', c o u r t s ar e b o u n d to a p p l y t h a t c h a n g e e v en in p e n d i n g a n d p r o p o s e d litiga­ tion, p r o v i d e d t h a t th e legislative a m e n d m e n t is o t h e r w i s e c o n s t i t u t i o n a l . ns In A m e r i c a n j u r i s p r u d e n c e this p r i n c i p l e is k n o w n as th e " c h a n g e d law r u le ” " 1'; its r a t i o n a l e is t h a t w h a t th e le g is la t u re h a s d o n e is to elfect a c h a n g e in th e law, w h i c h is t o a p p l y t o all. The c h a n g e d la w rule d o e s n o t legitimise legislative u s u r p a t i o n s o f j u d i c i a l f u n c ti o n s . H o w e v e r , the difficulty lies in i d e n t i f y i n g w h a t a r e u n c o n s t i t u t i o n a l legislative i n t e r f e r ­ ences w'ith j u d i c i a l p o w e r , w h ic h t h e P r iv y C o u n c i l d e s c r i b e d a s a n " a l m o s t im p o s s ib l e t a s k o f t r a c i n g w h e r e th e line is . . . b e t w e e n w h a t will a n d w h a t will n o t c o n s t i t u t e s u ch a n i n t e r f e r e n c e ” . 150 In princ iple, it is a c k n o w l e d g e d that " t h e ju d i c ia r y m u s t possess the ability, in d e p e n d e n c e a n d f r e e d o m to int er­ p r e t a n d a p p l y s u b s t a n t i v e legal principles so as to g u a r a n t e e to litigants in a p a r t i c u l a r ca se a j u s t o u t c o m e t h a t itself is p ro te c te d f r o m executive or legislative in t e r f e r e n c e ” . 151 CJ

(ii) Maintaining the decisional authority of the judiciary 7 020

A c k n o w l e d g i n g o v e r la p s at v a r i o u s stages o f th e jud ic ial pr oce ss d o es not d im in ish th e v al u e served by s e p a r a t i o n , best s u m m a r i s e d as l4c’ Bata Shoe Company v C'tR GY 197S UC 3 (CARI1 AVV) January Is. 1975 (11C Guy) al 36 per Massiah J. 147 A d v Zuniga [2014] CCJ 2: (2014) 84 W.I.R. 101 (CCJ B/c) al [44]. m;i i\.lcr Gerangclos. " llie Decisional Independence of Chapter III Courts and Constitutional Limitations on Legislative Power: Notes from the United Slates" (20O->) 33 1 cd 1 Rev 391. 394. 119 Gerangclos. above. 1311 I.i vintage v R [1966] 1 All L.R. 630 (PC’ Cev) a l 660. 171 AO r Zuniga [2014] CCJ 2; (2014) 84 W.I.R. 101 (CCJ B/e) at [40|.

6. CONTROL OF JUDICIAL POWER

317

“ensuring that legal disputes—particularly where the government is a party or in which it has an interest—are protected from the vagaries and vicissitudes of political influence and factional interest.”152 While the changed law rule would entitle Parliament to alter rights and liabilities even in pending disputes, what it does not permit is “undermining the decisional authority or independence of the judicial branch by compro­ mising judicial discretion.” 153The court’s ability to address legal principles in a pending case, i.e. its adjudicative process, must not be “negatively impacted so that it can truly be said that the legislature, in order to guarantee a particular outcome, is prescribing or directing or constrain­ ing the court in its application or interpretation of those principles.”154 Peter Gerangelos dubs this prohibition the “direction rule”.155 It is engaged not only when “the judicial branch is denied its ‘decisional independence’”, but also when the legislature is acting in a non-legislative manner.156 (iii) Parliament and the ad hominem principle Parliament must only, legislate for the generality of its subjects and is pro­ hibited from singling out any person or persons in designing offences or sentences. The doctrine of separation of powers is compromised if the legis­ lature enacts a law that creates an offence or sentence directed at a particular person or persons, or ad hominem. The effect of such an action is to limit the decisional authority of the judiciary in the adjudicative process by directing the judiciary in a specific case, or in some way by preventing or constraining independent judicial discretion.157 As succinctly expressed by Blackstone, Parliament is empowered to pass laws, not sentences.158This is a safeguard of the trial process designed to prevent encroachment from other institutions of government, and which ultimately benefits individuals’ rights to due process and liberty. A landmark application of the ad hominem principle occurred in Liyanage v R j 59 a decision of the Privy Council from what was then Ceylon. The 11 appellants had been arrested, detained and charged along with other persons with a number of offences after an unsuccessful coup d’etat. Shortly thereafter, the government published a White Paper which identified a number of individuals including the appellants and the roles they allegedly

157 Peter Gerangelos, “The Decisional Independence of Chapter III Courts and Constitutional Limitations on Legislative Power: Notes from the United States" (2005) 33 Fed L Rev 391, 392. 173 AG v Zuniga [2014] CCJ 2; (2014) 84 W.I.R. 101 (CCJ Bze) at [41]. 154 Zuniga, above. 155 Peter Gerangelos, “The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases” (2002) 30 Fed L Rev 1,11. 156 Peter Gerangelos, “The Decisional Independence of Chapter III Courts and Constitutional Limitations on Legislative Power: Notes from the United States” (2005) 33 Fed L Rev 391, 396. 157 Nicholas v R (1998) 193 C.L.R. 173 (HC Aus). 138 Blackstone Commentaries, 2nd edn, Vol. 1, p.44, quoted in Liyanage v R [1967] 1 A.C. 259 (PC Cey) at 267. 159 Liyanage v R, above.

7-021

318

H I l DISTRIBUTION AND SI PARA 1 ION OF GOVLRNMHN I AL POW1 RS

played in the coup, concluding with a promise to inflict severe punishment on all those found guilty. Parliament followed up with legislation that effected material changes to both the substantive law and procedure. The detention of the appellants was legalised retroactively, and a new offence was added to meet the circumstances of the failed coup. The rules of evidence relating to the admissibility of confession statements were relaxed, while the mode of trial was altered to provide for trial by three judges instead of by judge and jury. Severe mandatory sentences were introduced, which applied to the appellants if found guilty. Finally, the legislation was given retroactive effect to a time less than one month before the coup, and was set to expire after the trial of the appellants was concluded. The Privy Council invalidated the legislation on the ground that it involved a usurpation of judicial powers by the legislature in contravention of the Constitution of Ceylon. Giving the opinion of the Board, Lord Pearce described the legislation as “a legislative plan ex post facto to secure the con­ viction and enhance the punishment of those particular individuals” 160 who had earlier been named in the White Paper. The true nature of the enactments was discerned from their combined impact on the pending proceedings, and in particular to the changes effected to the punishment of those convicted. The entire legislative scheme could not survive as it involved a "deliberate incursion into the judicial sphere”.161 But as acknowledged by the Privy Council in Liyanage, and echoed by Mendes JA in AG v Zuniga,162 determining where to draw the line between the legislative power to alter rights by changing the law and impermissible legislative interference with the judicial function is no easy task. AG v Zuniga had its genesis in a protracted battle between the government of Belize and the respondents, Zuniga and BCB Holdings, over the scope of concessions granted to Belize Telemedia Ltd (BTL) by a previous administration. The concessions involved generous financial benefits, which were disavowed in Parliament by the new Prime Minister immediately upon assuming office. The Prime Minister also publicly declared, on more than one occasion, that his government would not honour its terms. In the course of this battle the government passed legislation to acquire BTL, and in response to this and other acts of the government several of the parties initiated arbitration proceedings. One provision of the impugned legislation was an amendment to Supreme Court of Judicature Act, which created the offence of knowingly disobey­ ing or failing to comply with an injunction and prescribed severe penalties for persons convicted of this offence, including mandatory minimum penal­ ties. The respondents argued that the legislation breached the separation of powers doctrine because it was introduced to target them and deter them from pursuing international arbitration in resolving their disputes with the governments. Both the Court of Appeal of Belize163 and the CCJ recognised that the pending disputes between the government and the respondents may have inspired the legislative changes, but both rejected arguments based on 160 161 162 163

Liyanage, above, at 290. Liyanage, above, at 290. Zuniga v AG BZ 2012 CA 14 (CARILAW) August 3, 2012 (CA Bze) at [76], Zuniga, above, at [63],

6. CONTROL OF JUDICIAL POWFR

319

the ad hominem principle since the new law was expressed in general terms and did not direct the court how to deal with any case, any specific individual, arbitration, or any pending criminal proceedings.164 Thus the CCJ held that the legislative scheme did not violate the principle of separation of powers, though specific provisions were struck down for breaches of fundamental rights provisions. In the view of the majority, Parliament may not interfere with the judicial process “in the sense of compromising judicial discretion by prescribing or directing the outcome in specific and pending proceedings”,165 but no such interference had occurred in this case. (d) Maintaining the discretion of judges to grant bail The power to grant or withhold bail has been described as “a classic judi­ cial power and duty”.166 This power and discretion should not be removed by the legislature. In the Mauritian case of State v Khoyratty,167 a constitu­ tional amendment—as distinct from an ordinary legislative provision- was under scrutiny. Section 5(3) of the Mauritius Constitution 1968 provided that a person arrested or detained was entitled to a determination by a court as to whether he or she should be remanded in custody or granted bail pending trial. This section was amended to preclude the granting of bail for drug and terrorism offences. The respondent, who was charged with an offence for which bail was not available, challenged the constitu­ tionality of the constitutional amendment. The Privy Council affirmed the judgment of the Court of Appeal invalidating the constitutional amend­ ment. The Privy Council held that the amendment sought to deny bail across the board for certain offences, which amounted to a usurpation of judicial power by the legislature. It thus violated the doctrine of separation of powers. Although s.5(3) of the Constitution had been amended prop­ erly, the Board held that the changes interfered with the deeply entrenched s.l of the Constitution which provides that “Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius”. According to Lord Rodger, “it is a hallmark of the modern idea of a democratic state that there should be a separation of powers between the legislature and the executive, on the one hand, and the judiciary, on the other.” 168 The amendment was not passed with the requisite majority for amending s.l and was accordingly void. In Khoyratty, the restriction on access to bail was total. Caribbean judges have gone further and held that partial restrictions on the power of judges to grant bail fall afoul of the separation of powers doctrine. In Jamaica, reforms to the Bail Act 2010, which were part of a package of anti-crime legislation, attempted to restrict the right to bail (as opposed to denying it altogether) and ,n4 lh5 166 167 11,8

AG V Zuniga [2014] CCJ 2; (2014) 84 W.I.R. 101 (CCJ Bze) at [42], Zuniga, above, at [44]. State v Khoyratty [2006] UKPC 13; [2007] 1 A.C. 80 (PC Maur) at [1], Khoyratty, above. Khoyratty. above, at [29].

7-022

320

THK HIS I'RI BUI'ION A N D

SHPARA1 ION OF CIOVhRNMl N I A l FOWFRS

were also invalidated on the same ground.169 The legislation in question was passed in response to burgeoning crime rates and its measures included the denial of bail for the first 60 days after charge for certain specified offences. This denial of bail was not absolute. A detainee under the legislation had a right to be brought before the court after the first 7 days, and thereafter at intervals of 14 days, until the expiry of the 60 day period, in order for the court to review the continued detention without bail. In such situations the burden of proof was reversed, and if bail was granted the prosecution was entitled to appeal. These provisions were enacted for a year in the first instance, but could be extended by resolution of each House of Parliament. The Constitutional Court accepted that the restrictions on access to bail were not “absolute in form and effect”.170 By a majority, the Court held that these provisions trespassed on the domain of the judiciary even though the restrictions on the judiciary’s power to grant bail were limited in their scope and duration. Brooks J pointed to a number of aspects of the legislation that involved multiple incursions onto the judicial function. Notably, the entitle­ ment of a defendant to bail depended on whether he was charged with a non-bailable offence. This meant that control over a suspect’s pre-trial liberty was effectively transferred from the judiciary to a member of the executive.171 Further, the court’s discretion was eroded in a number of significant ways. The seriousness of the offence was elevated to the determinative reason for the grant of bail whereas at common law it was only one of a number of factors.172 There was also a requirement that the defendant be remanded pending appeal by the prosecution. None of these defects was remedied by the temporary nature of the legislation, for according to Brooks J, “the court’s authority cannot be put on hold, even temporarily”.173 (e) Sentencing in individual cases must not be transferred to the executive 7-023

The sentencing phase is by no means the exclusive preserve of the judiciary. As explained by Ackermann J of the South African Constitutional Court, every branch of government has a role to play in in this regard.174 Both the executive and the legislature have a legitimate interest in fixing the appropri­ ate punishment for offences, a process which involves the consideration of a range of policy factors such as cost, prevalence of crime, moral imperatives, and even international norms and the need for comity among nations. Once general guidelines are formulated, it is then the task of the judiciary to pass sentence in individual cases. (i) Selection o f sentence through selection o f charge

7 024

Where there is a choice in the charge to be laid against a suspect, a potential conflict of powers arises. If the choice results in giving the executive the power 169 170 171 172 173 174

Nation v DPP Unreported July 15. 2011 (SC Jam). Nation, above, at [62]. Nation, above, at [145]. Nation, above, at [147]. Nation, above. Doclo v State 2001 (3) SA 382 [22], 2001 (5) BCLR 423 (CC SA).

6. CONTROL OF JUDICIAL POWER

321

to select the sentence upon conviction, this constitutes an encroachment on the judicial function. In Teh Chen Poh,ils a Privy Council decision from Malaysia, the choice of what charge to lay against a person for unlawful pos­ session of a firearm was related to the ingredients of the offence. The more serious charge applied to possession in a security area and was punishable by a mandatory death sentence, while the other charge of possession anywhere in Malaysia carried a punishment of a fine or imprisonment or both. The Privy Council held that there was nothing unconstitutional in the power entrusted to the prosecuting authority regarding which of the offences to charge, as the discretion would be exercised based on the available evidence. A decade later, in Ali v R, 176 in an appeal from Mauritius, the Privy Council reviewed the Dangerous Drugs Act which provided two different penalties for the same act of importing a prohibited drug where the accused was found to be trafficking in drugs; one penalty was the mandatory death sentence, and the other a fine and imprisonment. These sentences were not connected to the evidence. They varied according to the court before which the accused was tried and convicted. The mandatory death sentence could only be imposed where the accused was tried before a judge without a jury, and the discretion as to the mode of trial was vested in the Director of Public Prosecutions (DPP). Effectively, therefore, by choosing where to try an accused the DPP could select the sentence that would be imposed in the event of a conviction. The Privy Council found this element of the provision to be unconstitutional on the basis that it constituted a transfer of judicial power to a member of the executive. Since it was up to the DPP to decide the mode of trial, the DPP was “in substance” conferred with the power to select the penalty in a particular case.177 A similar issue of prosecutorial discretion impacting upon sentencing also arose in Zuniga.m Another provision of the impugned amendment to the Supreme Court of Judicature Act (s. 106(A)) created a new offence for con­ tempt of court and breach of court orders with stringent mandatory penal­ ties, extending as high as $250,000 and/or imprisonment for a term between 5 and 10 years in the case of natural persons, or a fine of no less than $100,000 and up to $500,000 in the case of a legal person or other entity. The Attorney General had the power to lay a complaint for the new offence. The very Supreme Court of Judicature Act in s. 105 as well as the Criminal Code had long criminalised contempt and/or breach of court orders, but with far less severe penalties: two years and three months imprisonment maximum respec­ tively. The offence under the Criminal Code was a summary one, so there was no overlap between it and the newly inserted offence. However, both the existing s. 105 and the newly inserted s. 106(A) covered the same ground, and as the CCJ conceded, there was “undoubtedly some overlap” between these two offences.179 The Court of Appeal of Belize struck down the new S.106A inserted in the Supreme Court of Judicature Act, reasoning that it conferred an impermissible 175 176 177 ,7B 179

Teh Chen Poll v Public Prosecutor, Malaysia [1980] A.C. 458; [1979] 2 W.L.R. 623 (PC Mai). Ali v R [1992] 2 A.C. 93 (PC Maur). Ali, above, at 104. AG v Zuniga [2014] CCJ 2 ; (2014) 84 W.I.R. 101 (CCJ Bze). Zuniga, above, at [52],

7-025

322

1HF. DISTRIBU HON A N D SEPARATION OF UOVbRNMF.N I AI. POWERS

discretion on the prosecuting agency to select the sentence in any given case through the selection of the charge.180 The CCJ reversed this holding on appeal. It held that the offence in the Criminal Code was a different offence to the 2010 one. While the former dealt with breach of orders in the magistrates and other inferior courts and provided for a summary offence, the latter dealt only with breaches of orders of superior courts. The CCJ noted that it was entirely appropriate for Parliament to regard disobedience to the orders of the Supreme Court as warranting more serious penalties than those imposed for disobeying the orders of a magistrate.181 Difficulties arose in relation to the offence found in s. 105, which was in substance the same as the new one in s. 106(A). The existence of two possible charges for the same conduct, only one of which attracted a severe, mandatory penalty, would seem to attract the very vice identified in Ali, in that the same evidence could ground either charge. However, differing from Mendes JA, the CCJ held that here too was there no breach of separation of powers in relation to the alternative regimes. The CCJ noted that regardless of who laid the charge under s. 106(A) -whether it was the Attorney General, police or even a private citizen -the ultimate discretion as to whether to proceed with that charge lies with the DPP. For this reason, the CCJ concluded that it could not be said that the selection of a choice of penalty lay with the Attorney General.182 Mendes JA, like the High Court in Lucas v Medialieu- Webbc,183 regarded the DPP as an office of the executive branch. This would mean that any power to select the sentence by way of the charge amounted to an impermis­ sible usurpation of a judicial function by the executive. The CCJ disagreed, evidently viewing the office of the DPP as one independent of the executive arm of government. But it is not clear that this is really so, in form or sub­ stance. Almost all Caribbean constitutions attempt to invest the office of the DPP with some degree of independence.184Ironically, the Belizean provisions are the weakest in this regard. While the Belizean DPP is appointed on the recommendation of the judicial and legal services commission, the Prime Minister must approve of the appointment.185 More pointedly, in the exercise of his or her functions, including that of discontinuing criminal proceedings, the DPP’s freedom from direction or control by any person or authority is expressly made subject to the Attorney General’s “responsibility for the administration of legal affairs in Belize”.186 The latter provision dispenses with the need to speculate as to actual independence of the office of the DPP from the higher executive. Since the DPP’s functions are expressly subject to the Attorney General’s overall control, then any decision of a DPP whether or not to proceed with a criminal charge is not in substance insulated from interference by the AG. Thus the vice identified in Ali is clearly present in the provisions considered in Zuniga, for the judicial function of selecting the penalty has been indirectly vested in an executive office. 180 JA. 181 182 181 184 185 186

Zuniga v AG HZ 2012 CA 14 (CARILAW) August 3, 2012 (CA H/e) at [891 per Mendes AG v Zuniga [2014] CCJ 2; (2014) 84 W.I.R. 101 (CCJ Bze) at [54], AG v Zuniga, above, at [55]. Lucas v Mallalieu- Webbe KN 2003 HC 3 (CARILAW) January 22, 2003 (HC SKN). See below para.7 033. Bze Const s. 108(1). Above, ss.50(6), 42(2).

6. CONTROL OF JUDICIAL POWER

323

(ii) Indeterminate sentences While both the legislature and the executive have an interest in punish­ ments, such interest is a general one. This means that Parliament is only able to prescribe appropriate punishments (or a range of punishments) in advance, to be applied generally. What neither the legislature nor the executive can do is to determine the sentence in a specific case, as that unequivocally involves encroachment on the judicial function. For this reason, indeterminate sentences which are left up to a member of the execu­ tive to quantify have been consistently disallowed. The most conspicuous example of this breach occurred in Hinds v R, where one offence under the Act carried a mandatory penalty of detention during the Governor General’s pleasure, with the actual length of an individual sentence under this provision being entrusted to a Review Board set up under the Act, in which only one of the five members was a member of the judiciary. The others were all various employees of the state and other prominent indi­ viduals in public life. The convicting court could make recommendations regarding the length of any sentence to be imposed, but the Review Board was not obliged to follow them. The Privy Council struck down this provi­ sion because it involved a transfer of the power to determine the length of a custodial sentence in individual cases from the judiciary to an executive body. This was a violation of the separation of powers doctrine and there­ fore impermissible. Indeterminate sentences to be served at the pleasure of the Head of State are unconstitutional for the same reason as identified in Hinds. Across the entire Caribbean, this was the standard sentence for the offence of murder where committed by persons under the age of 18. It was judicially scrutinised first in an appeal from St. Kitts-Nevis where, after finding the sentence to be a violation of the separation of powers, the Privy Council modified it by taking the power from the Governor general and entrusting it to the court.187 This reasoning was thereafter applied to invalidate identical provisions all across the rest of the Caribbean.188 A slight twist on this issue was raised in Pinder v R ,m where the sentence under consideration was that of flogging. One argument raised on appeal was that since its severity could not be controlled in advance, this punishment by its very subjective nature involved an impermissible transfer of judicial power to a member of the executive. A majority of the Privy Council disagreed. Although recognising that the severity of punishment could not be prescribed in advance, they held that this did not confer any discretion on the execu­ tive as the officer administering it was required to do so “properly”, which meant “fairly and impartially, with vigour but without rancour.”190 Further, while the punishment is “inevitably variable on individual defendants”, it was 187 Browne v R [1999] UKPC 21; (1999) 54 W.I.R. 213 (PC SKN). 188 DPP v Mollison (2003) 64 W.I.R. 140, [2003] 2 A.C. 41 (PC Jam); Scantlebury v R (2005) 68 W.I.R. 88 (CA Bds); At tin v A G T T i m HC 133 (CARILAW) November 11,2003 (HC TT); Evelyn v AG TT 2009 HC 171 (CARILAW) July 6, 2009 (HC TT); AG v SeepersadTT 2009 CA 44 (CARILAW) December 14, 2009 (CA TT); R v Wilson LC 2010 HC 9 (CAIRLAW) May 26, 2010 (HC SLU). 189 Pinder v R [2002] UKPC 46; (2002) 61 W.I.R. 13; [2002] 3 W.L.R. 1443 (PC Bah). 1U0 Pinder, above, at [34].

7-026

3 24

1IIL DISTRIBUTION A N D SEPARATION OE GOVERNMENTAL POWERS

“ultimately subject to judicial control”191 and therefore involved no breach of the separation principle. (iii) Mandatory sentences 7-027

It is ordinarily appropriate for the legislature to prescribe generally the punishment to be imposed on conviction of a criminal offence.192 Indeed this is the norm, and in the course of so doing Parliament invariably prescribes a range of penalties, up to a specified maximum, which may be imposed on an individual offender. Provided such punishment does not fall within the realm of what is considered to be inhumane, Parliament is also entitled to prescribe a fixed or mandatory punishment to be applied automatically to all convicted offenders.193 In refusing to strike down mandatory penalties imposed for new offences created in relation to the enforcement of a court order, the Court of Appeal of Belize unani­ mously held that such penalties do not violate the separation of powers doctrine.194 While affirming this finding on appeal, the CCJ cautioned that courts will “always examine mandatory minimum penalties with a wary eye.”195 The CCJ defended such judicial scrutiny not only on the basis to protect human rights, but also to “uphold the rule of law” and, signifi­ cantly, “the quintessentially judicial function of tailoring the punishment to fit the crime.” 196 (f) Preserving the integrity of the judicial function

7 028

The anxiety to preserve the independence of the judiciary from the other branches of government, particularly in parliamentary systems, led to the early development of strict embargoes on the functions entrusted to the judi­ ciary both in and out of office. In the landmark Boilermakers’ case,197 the Privy Council upheld the judgment of the Australian High Court that the separation doctrine prohibited federal courts from exercising non-judicial functions that were not incidental to their judicial powers. The strictness of this position was gradually relaxed to permit judges to participate in a number of non-judicial activities, provided that service is voluntary and that the activities are not wholly incompatible with the performance of their judi­ cial role.198 The boundaries of propriety regarding the extent of judges’ involvement in extra-judicial matters appears to be a common issue across different sys­ tems.199 Presumably this is so because the training, experience and prestige 191 Pinder, above. 192 Hinds v AG (1975) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam). 193 Hinds, above. See Dodo v State 2001 (3) SA 382, 2001 (5) BCLR 423 (CC SA) at [22] [30], 194 /Am iga v AG BZ 2012 CA 14 (CARILAW) August 3,2012 (CA Bze); affirmed AG v Zuniga [2014] CCJ 2, (2014) 84 W.I.R. 101 (CCJ Bze). 195 AG v Zuniga, above, at [61]. 196 AG v Zuniga, above, at [61]. 197 AG for Australia v R [1957] A.C. 288 (PC Aus) ( Boilermakers’ case). 198 Joseph Wenta, “The Integrity Branch of Government and the Separation of Judicial Power” (2012) 70 AIAL Forum 42. 199 See below para.8 019.

6. CONTROL OF JUDICIAL POWER

325

of judges render them ideal candidates for a variety of commissions which may have investigative, reporting, arbitral or policy-oriented functions. An analysis published in 1970 revealed the remarkable fact that more than half of the judges who had ever sat on the US Supreme Court had participated in “extensive nonjudicial activities”.200Those spanned the spectrum of relatively benign activities such as teaching and serving in honorary positions to the other extreme of serving in executive roles like Secretary of State, advising the US President, and even actively campaigning in presidential elections.201 The modern test of what is permissible turns on issues of consent and com­ patibility. Compatibility is linked to the consequences of judges participating in non-judicial activities, which have been identified as the impact on their efficiency, impartiality and public perception.202 Efficiency and effectiveness are negatively impacted where the demands on the judge by the other activity are extensive or protracted. Impartiality may be compromised if service on commissions influences the judge or even his or her colleagues on the bench in favour of views promoted by the commission.203 And finally, public percep­ tions of the judicial branch as a whole may be affected if the extra-judicial activities are seen as too closely aligned with the executive.204 The Australian High Court has developed elaborate criteria to assess how public confidence may be affected.205 These criteria seek to assess how closely the functions are connected to those of the legislature or the executive government, whether the decisional independence of the judge in the performance of the function is maintained, and whether political grounds potentially figure in the decision­ making process.206 Consideration of these factors figured in the decision of the Constitutional Court of South Africa in South African Association o f Personal Injuries Lawyers v Heath,201 where the make-up of a special investigating unit tasked with investigating and prosecuting corruption in public entities came under scrutiny. A sitting judge of the High Court was installed as its first head. The Constitutional Court invalidated this appointment as a violation of the doctrine of separation of powers. The court held that the extensive investiga­ tive functions of the unit were executive in nature and these were incompat­ ible with the Head’s judicial office.208 In addition to the impermissibility of entrusting highly intrusive executive powers to a sitting judge, the court pointed to the need for judges to be seen by the public as independent of the executive. Chaskalson P cautioned that some functions were simply too far removed from the normal judicial function to be given to judges.209 20,1 Robert McKay, “The Judiciary and Nonjudicial Activities” [1970] Law and Contemporary Problems 9. 2(11 McKay, above, 27 36. 21)2 McKay, above, 19. 202 Wendy Ackerman, “Separation of Powers and Judicial Service on Presidential Commissions” (1986) 53 U Chi L Rev 993, 1011. 21)4 Ackerman, above, 1017 18. 205 Wilson v Minister for Aboriginal Affairs (1996) 189 C.L.R. 1 (HC Aus). 2116 Joseph Wenta, “The Integrity Branch of Government and the Separation of Judicial Power” (2012) 70 AIAL Forum 42, 50 51. 21,7 South African Personal Injuries Lawyer v Heath [2000] Z.A.C.C. 22; 2001 (1) SA 883: [2001] 4 L.R.C. 99 (CC SA). 208 Heath, above, at [45]. 209 Heath, above, at [35].

326

n it: d i s t r i b u t i o n a n d s f p a r a i t o n o f g o v h rn m i

n

i a l p o w e rs

The Constitutional Court of Uganda came to a similar conclusion in Muhwezi v AG,m where one issue concerned the appointment of a sitting judge as the Inspector General of Government (IGG). This was a constitu­ tional office tasked with investigating corruption and abuse of authority or of public office, which was supplemented by extensive powers to investigate, arrest and prosecute. The petitioners were various officials in the Ministry of Health who objected to the constitutional propriety of being prosecuted by the IGG. The Constitutional Court held that the functions and powers of the IGG were incompatible with those of a judicial officer, contravening the con­ stitutional principles of the separation of powers and the independence of the judiciary. However, while this meant that the appointment of a sitting judge as the IGG was unconstitutional, this did not affect the actual prosecution of the petitioners, which was accordingly upheld. 7. Control of Executive Power

7-029

Fidelity to the doctrine of separation of powers requires that there be no encroachment on the domain of the executive by the other two organs of government. However, as the cases demonstrate, the preliminary exercise of identifying the executive function is not always a straightforward one, because the lines between the respective branches are not clearly demarcated. (a) Transfer of executive power to the judiciary (i) Judiciary can impose positive obligations on the executive

7-030

It is within the remit of courts to make orders that place a positive duty on the executive to expend state resources to ensure the full guarantee of fun­ damental rights. In AG v Gibson,211 the issue was whether the constitutional right of every person charged with a criminal offence to be given “adequate time and facilities for the preparation of his defence” enshrined in s,18(2)(c) of the Barbados Constitution imposed an obligation on the state to pay for the services of an expert witness to testify on the respondent’s behalf. The only real evidence led by the state against the respondent was from an odontologist to the effect that a bite mark on the arm of the respondent matched the teeth of the deceased. The respondent wanted but could not afford to conduct his own independent examination of the impression. The Court of Appeal of Barbados held that while the respondent could obtain declaratory relief confirming his entitlement to “facilities” in the form of expert testimony, there was no constitutional basis for a court to order the State to fund the expenses of an expert.212 In addition to a very narrow reading of the constitutional provision, the Court of Appeal rested its decision on a purported application of the doctrine of separation of powers. It reasoned that to require the state to fund an expert witness for any defendant is a costly undertaking, and since this would impact on public expenditure, that was a decision more properly 210 Muhwezi v AG [2010] UGCC 3 (CC Ug). 211 AG v Gibson Unreported December 15, 2009 (CA Bds). 212 Gibson, above, at [54],

7. CONTROL Oh EXHCTITIVG POWER

327

within the province of the executive. The Court of Appeal added that it is not appropriate for a court to make a mandatory order directing the executive to carry out a constitutional function. This is a puzzling decision, not only because of the well-known authority to the contrary,213 but also because of its unsustainability. It is commonplace for courts to award damages and costs, orders that have direct financial implications for all parties to litigation including the state. It is therefore no encroachment by the judiciary on the executive function if, as part of the legal outcome of a constitutional challenge, a court requires the state to incur costs and expenditure. Unsurprisingly, the CCJ made short shrift of this point, reaffirming unequivocally that the principle of separation of powers does not preclude the court from making an order against the executive which may require the expenditure of public funds.214 The CCJ pointed to the breadth of the redress provision in the Constitution, invoking Gairy v AG, where the Privy Council affirmed that as part of its obligation to grant effective relief for breach of a constitutional right, a court may have to make a mandatory order for the payment of money by the state.215 (H) Prosecutorial discretion The initiation of criminal proceedings is pre-eminently an executive func­ tion, one carried out in the normal course by the police and, in more serious matters, the DPP and, exceptionally, the Attorney General. Ultimate control over all prosecutions is constitutionally vested in the DPP, who is empowered to intervene in and either continue or discontinue any criminal proceedings, whether instituted by him or not,216 a power described as that of regulating “access to the criminal justice process”.217 The courts have a highly limited discretion to review the decision to prosecute, which should only be exer­ cised in the most exceptional circumstances. It is the responsibility of the judiciary to “keep out of the arena” and to “not have or appear to have any responsibility for the institution of a prosecution.”218 Clashes occasioned by the purported exercise of competing authority involve two distinct but relevant dimensions: the decision to initiate and the decision not to initiate criminal proceedings. Each falls naturally within the prosecutorial sphere, and the rationale for judicial circumspection is that the same body should not be “both actor and judge”.219 In the Boilermakers’’ case, Viscount Simonds pointed out that the “fundamental principle which makes such a combination appear contrary

213 Gairv v A G ( i m ) 59 W.I.R. 174; [2002] 1 A.C. 167 (PC Gren). 214 Gibsun v AG [2010] CCJ 3 (AJ); (2010) 76 W.I.R. 137 (CCJ Bds). 213 Gibson, above, at [42]. 2U' A&B Const s.88(1); Bds Const s.79(2); Bze Const s.50(2); BVI Const s.59(1); Cl Const s.57(2); Dom Consl s.72(2); Gren Const s.71(2); Guy Const a rt.187(1); Jam Const s.94(3); Mont Const s.46(2); SKN Const s.65(2): SLU Const s.73(2): SVG Const s.64(2); TT Const s.90(3); TCI Const s. 100(2). 217 Mutalulu v DPP [2003] 4 L.R.C. 712 (SC Fiji) at 724. 215 DPP v Humphry's [1977] A.C. 1 (HL) at 26 per Viscount Dilhorne. 2|V AG for Australia v K [1957] A.C. 288 (PC Aus) ( Boilermakers' ease) at 316.

7-031

328

n iF . niS'lK lB H riO N A N D SFPARATION OF GOVFRNM1 N IA I. I ’O W l RS

to natural justice is not remote from that which inspires the theory o separation of powers.”220 A related consideration is that the judicial branch in common law systems is i responsive one; it does not go looking for cases but decides the ones brough before it. The orthodox position of limited judicial involvement with an exercise o prosecutorial discretion was readily applied in an application by the com­ plainant for judicial review of the decision of the DPP to discontinue privatt criminal proceedings for rape brought by a female police officer against i Prime Minister.221 The applicant alleged that she was indecently assaultec and raped by the Prime Minister while performing security duties his resi­ dence. She made a report to her superior and the commissioner of police No criminal charges were brought against the Prime Minister. She filed twe private criminal complaints. These charges were taken over by the DPP and discontinued. The applicant unsuccessfully sought judicial review of the DPP’s decision to discontinue.222 The Court of Appeal agreed with the deter­ mination of the trial judge that there was no evidence of bad faith on the part of the DPP, and since he had properly exercised powers constitutionally vested in him, there was no reason to intervene. In the converse situation, if a court reviews a decision to prosecute it risks acting prematurely and on incomplete information, though courts may prop­ erly intervene to prevent an abuse of process. In R v Henry,223 the court granted a permanent stay of a firearm charge after a murder charge against the defend­ ant, based on the same evidence, was dismissed. In support of the decision to quash the indictment, Sykes J identified relevant factors for the exercise of the court’s discretion as being where continued prosecution of a defendant would violate the community’s sense of fair play or would constitute an abuse. In this case, since the evidence for both charges was the same, it was clearly an abuse of process to proceed with one charge when the other had been dismissed. The power of the court to review a decision to prosecute arose in one dimension of the very public dispute between the Chief Justice and the Prime Minister of Trinidad and Tobago. In Sharma v Browne-Antoine,224 the Chief Justice obtained leave to seek judicial review of a decision by the DPP to prosecute him for attempting to pervert the course of public justice. The Privy Council upheld the decision of the Court of Appeal of Trinidad and Tobago to set aside the leave, affirming that while the judiciary is empowered to review the exercise of executive power to ensure compliance with the law, it must be careful not to appear to be usurping executive functions. In their joint judgment, Lords Bingham and Walker reiterated that while judicial review of a prosecutorial decision is available in principle, it is a highly exceptional remedy. They justified this position by reference to both pragmatic and sub­ stantive concerns. The former include the inevitable delay to the criminal pro­ ceedings (if allowed to continue) and the desirability of having all challenges 120 221 222 222 224

Boilermakers' case, above, at 316. Andrews v DPP VC 2008 CA 1 (CARILAW) July 14, 2008 (CA SVG). Andrews, above. R v Henry JM 2009 SC 91 (CARILAW) October 2, 2009 (SC Jam). Sharnui v Browne-Antoine (2006) 69 W .I.R. 378; [2007] 1 W.L.R. 780 (PC TT).

7. CON! ROL OF EXECUTIVE POWER

329

take place at trial. The latter concerns arose out of the “polycentric character of official decision-making in such matters”,225 in that the DPP is required to consider not only the evidence in the case but matters of policy and public interest, which are not within the courts’ constitutional function nor “practical competence” to second-guess. Ultimately, in their Lordships’ view, judicial interference with a prosecutor’s decision to prosecute would entail a “blurring of the executive function of the prosecutor and the judicial func­ tion of the court, and of the distinct roles of the criminal and the civil courts’226 —hence the “extreme reluctance” to do so. In a remarkable case of judicial review of prosecutorial discretion, Re Greene,111 the advice given by the DPP to charge the commissioner of police in Guyana with rape was quashed even before it could be acted on. The acting Chief Justice expressed concerns about the risks of having a public law discre­ tionary power that is immune from judicial review. He opined that this could create an absolute public law power and argued that “[djown that slippery slope lies the way to Caesarian dictatorship in matters of public affairs.”228 At the hearing of the civil application to quash the DPP’s advice, Chang CJ (Ag) conducted a microscopic analysis of the statements in the criminal case, including speculating whether the reactions of the complainant were consist­ ent with those of someone who had been raped. In effect, with this exercise the court substituted its view for that of the DPP. The acting Chief Justice drew inferences from facts not yet in evidence—matters of credibility that are within the jury’s province. In Sharma v Browne-Antoine129 the Privy Council noted that judges should evince “extreme reluctance” to disturb prosecutorial discre­ tion by way of judicial review because of the breadth of the DPP’s discretion, which includes considerations of policy and public interest. Such factors were heightened in this case where the complainant and alleged perpetrator were so unequally positioned and a very senior public official was involved. (b) The independent public service Caribbean constitutions go some way to establishing an intra-branch sepa­ ration of powers in the executive between the political directorate who are part of the Cabinet and public servants who undertake the day to day work of the executive. Although executive authority is vested in the Cabinet, a large portion of the business of government devolves, by necessity, on an extensive network of subordinate officers who are public servants. Caribbean constitutions attempt to protect these subordinate layers from improper political interference from Cabinet members. Separate chapters exist in the constitutions dealing with the public service. In Thomas v AG230 Lord Diplock explained that these chapters are aimed at 235 226 227 228 229 230

Sharma v Browne-Antaine (2006) 69 W.I.R. 378 (PC TT) at 389. Sharma, above. Re (ireene Unreported February 20, 2012 (HC Guy). Re Greene, above, at 1. Sharma v Browne-Antoine (2006) 69 W.I.R. 378; [2007] 1 W.L.R. 780 (PC TT). Thomas v AG (1981) 32 W.I.R. 375; [1982] A.C. U 3(PC T T ).

7-032

330

T ill: DISTRIBU 1 ION A N D SLPA RA 1ION OT GOVhRNMI N1A I POWI.RS

“insulat[ing] members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day.”211 In this regard, it could be said that Caribbean constitutions create a reason­ ably independent civil service. The key instrument of separation between the political executive and the public service is service commissions that govern certain key areas of public life autonomously, namely offices in the public service,232 the police force,233 and in a few countries the teaching service234 as well. In the independent countries, service commissions are entrusted with control over appointments to, transfers in, promotions in, disciplinary control in, and removal from the relevant service;235 in the overseas territories they have a more limited advisory role in this regard.236The processes for appointment to sit on service commissions differ, but in the independent countries all but one involve a strong political element in that they are effectively made by the Prime Minister- or, in the case of Guyana, by the President, with only a minimal obligation to consult the Leader of the Opposition.237 That sole exception is Trinidad and Tobago, where appointments to the service commissions are made by the President, whose duty is merely to consult with the Prime Minister and Leader of the Opposition.238 Despite their manner of appointment, the Constitutions contain numer­ ous safeguards to promote the independent functioning of members of the service commissions. Appointees hold office for a fixed period of time, usually three years,239 though a number of them stipulate a period anywhere between one and five years.240 This means that in most countries the members have a degree of security of tenure. They can be removed only for inability to perform their functions, whether because of infirmity or misbehaviour, and 231 Thomas v (1981) 32 W .I.R. 375 at 382; [1982] A.C. 113 at (PC TT) 124. 232 Ang Const s.65; A&B Const s.99; Bah Const a rt.107; Bds Const s.90; Bze Const s.105; Ber Const s.81; BVI Const s.91; Dom Const s.84; Gren Const s.83; Guy Const art. 135; Jam Const s. 124; Mont Const s.82; SKN Const s.77; SLU Const s.85; SVG Const s.77; TT Const s. 120; TCI Const s. 89. 233 A&B Const s.104; Bah Const art.118; Bds Const s.91; BVI Const s.96; Dom Const s.91; Guy Const art. 137; Jam Const s. 129; SKN Const s.84; SVG Const s.84; TT Const s. 122. 234 BVI Const s.93; Guy Const art. 136: SLU Const s.92; TT Const s. 124. 235 A&B Const ss. 100(1), 105(1); Bah Const art.108; Bds Const ss.94, 96: Bze Const s. 106(1); Dom Const ss.85, 92(2); Gren Const ss. 84, 89; Guy Const arts.201, 209(1), 211, 212; Jam Const ss. 125(1); 131, SKN Const ss.78(l), 85; SLU Const ss.86(l), 93. 94; SVG Const ss. 78(1). 85; TT Const ss. 121, 123,125. 236 Ang Const s.66; Ber Const ss.82, 87; BVI Const ss.92, 97; Mont Const s.83(l); TCI Const s.90. 237 A&B Const ss.99(l); 104(1); Bah Const arts,107(l), 118(1); Bds Const ss.90(l), 91(1); Bze Const s.105(2); Dom Const ss.84(l).91(l); Gren Const s.83(1); Guy Const arts.200(l). 207(1). 210(1); Jam Const ss. 124(2), 129(2); SKN Const ss.77(l). 84(1); SLU Const ss.85(l), 92(1); SVG Const ss.77(l), 84(1). 238 'IT Const ss. 120(2), 122(2), 124(2). 239 Bah Const arts.l07(3), 118(3); Bds Const ss.90(3), 91(3); Bze Const s,105(5); Dom Const ss.84(4), 91(2); Gren Const s.83(4); Guy Const arts.200(l), 207(1), 210(1); SLU Const s.85(3). 240 Ang Const s.65(4); A&B Const ss.99(3). 104(2); Ber Const s.81(2); BVI Const ss.9 1 (4 ), 9 3 (2 ), 96 (2 ); M ont Const s.82(3); Jam Const ss. 1 2 4 (5 ), 129(5); SKN Const ss.77(3), 8 4(2); SVG Const ss.77(2), 84 (2 ); TT Const s,126(3); TCI Const s.89(3).

7. CONTROL OF EXECUTIVE POWER

331

in the independent states removal must follow a specified process.241 Only in the overseas territories is the ability to remove a discretion vested in the Governor.242 Several constitutions stipulate what Lord Diplock described as a “quarantine period”,243 which is a period of either three244 or five245 years after ceasing to be a member in which he or she is ineligible for appointment to any public office. This safeguard is “clearly intended to avoid the risk of his being influenced in favour of the executive by considerations of advancement in his own career.”246 Many constitutions go on to specify explicitly that the service commissions are to be autonomous, in that they are to function independently of direction or control by any person or authority.247 Altogether, these mechanisms are designed to ensure that persons in public life will be appointed on the basis of merit, not political affiliations. Since matters of discipline and termination are under the control of a relatively independent body, public servants are thereby afforded a significant measure of security of tenure and protection from politicians. The abolition of the historic doctrine of dismissal at pleasure of Crown servants is integral to the independent public service. In Thomas v AG,248 an assistant superintendent of the Trinidad and Tobago Police Force chal­ lenged his dismissal by the Police Service Commission. The Privy Council affirmed that the doctrine of dismissal at pleasure had been overtaken by both the independence and republican Trinidad and Tobago constitutions. Their Lordships pointed out that this historic doctrine facilitated the “spoils” system; that is, it enabled a new government to dismiss members of the public service whom they perceived not to be supportive of the ruling party. It there­ fore would pressure public servants to subordinate propriety and efficiency to political expediency. These principles and their importance for achieving civilian government were reiterated by the Privy Council in Cooper v Director of Personnel Administration,249 an appeal from Trinidad and Tobago. An examination board appointed by the Cabinet conducted examinations across the entire public service, including for members of the police service. The relevant 241 A&B Const s.99(4)-(6). 104(2): Bah Const a rt.126; Bds Const s.105; Bze Const s .1 0 5 (6 ) (8); Dom Const s.84(5)-(7), 91(2); Gren Const s.83(5)-(7); Guy Const arts.200(4), 208(2), 210(3); Jam Const s. 124(5), 129(5): SKN Const s.77(5), (6). 84(2); SLU Const s.85(5) (7), 92(5) (7): SVG Const s.77(5) (7), 84(2); TT Const s. 126(4). 242 Ang Const s.65(4); Ber Const s.81(6); BVI Const ss.91(4), 93(2), 96(2); Mont Const s.82(5); TCI Const ss.86(3), 89(4). 244 Thomas v AG (1981) 32 W.I.R. 375 at 382; [1982] A.C. 113 (PC TT) at 124. 244 Dom Const ss.84(3), 91(2); Gren Const s.83(3); Guy Const arts.207(6), 210(5); Jam Const ss. 124(4), 129(3); SLU Const ss.85(3), 92(3); SVG Const ss.77(3), 84(6): TT Const s. 126(2). 244 Bah Const art. 107(6); Guy Const art.200(7). 24h Thomas v AG (1981) 32 W.I.R. 375 at 382; [1982] A.C. 113 (PC TT) at 124. 247 A&B Const ss.99(ll), 104(2); Bze Const s.105(12); BVI Const s.94(7)(a): Dom Const ss.84(12), 91(2); Gren Const s.83(12); Mont Const s.82(11); SKN Const ss.77(11). 84(6): SLU Const s.85(12); SVG Const ss.77(12), 84(6); TCI Const s.89(ll). 245 Thomas v >1G(1981) 32 W.I.R. 375; [1982] A.C. 113(PCTT). 249 Cooper v Director of Personnel Administration [2006] UKPC 37; (2006) 68 W.I.R. 477; [2007] 1 W.L.R. 101 (PC TT).

3 32

TIIH DISTRIBUTION A N D SEPARATION Ol- GOVERNMENTAL POWERS

service commission was not involved in the process. The Privy Council accepted that there were good reasons why cabinet would be legitimately interested in the conduct of examinations for members of the public service, such as ensuring consistency, uniformity of standards, and the economic use of limited resources. Nevertheless, they cautioned that a line had to be drawn between the proper exercise by Cabinet of its authority for the general direction and control of government under s.75(1) of the Constitution, and the risk of improper political influence in the making of appointments by the service commissions. The Privy Council held that the examination was integrally connected to promotion, which was within the exclusive preserve of the relevant service commission. While Cabinet could take some initiative in the process, it could not usurp this function altogether by imposing an examination board of its choosing on the service commission.250 The Board asserted robustly that “the Constitution requires that the powers which it has given to the public service commissions, and to the Police Service Commission in particular, to appoint persons to hold or act in public offices and to make appoint­ ments on promotion must be exercised free from interference or influence of any kind by the executive.”251 (c) The independence of the DPP 7- 033

For the most part, the constitutions of the independent states all seek to secure some degree of insulation of the DPP from the political executive. This is another form of intra-branch independence. Generally, appointment, removal and the exercise of disciplinary control are vested in the specialised judicial and legal services commission or public service commission,252 and at least in one case the emoluments of the DPP are protected from nega­ tive interference.253 Occupants of the office are appointed until a prescribed retirement age254 and can only be removed for cause, specified as physical or mental incapacity or misbehaviour, and then only in accordance with a pre­ scribed procedure similar to that laid down for removal of a judge.255 These institutional safeguards are rounded off in the majority of constitutions by an express stipulation that in the exercise of his or her functions, the DPP is not subject to the “direction or control of any other person or authority”.256 250 Cooper, above, at [28] [29], [32], 251 Cooper, above, at [28]. 2.2 A&B Const s.87; Bds Const ss.101, 105; Bze Const s.108; Dom Const s.88; Gren Const s.86; Guy Const arts. 199. 203; Jam Const s.96; SKN Const s.81; SLU Const s.89; SVG Const s.81; TT s.l 11. 2.3 Jam Const, s.95. 234 A&B Const s.87(6); Bds Const s.101(4); Bze Const s. 108(1); Dom Const s.88(6); Gren Const s.86(5); Guy Const art.203(4); Jam Const s.96(l); SKN Const s.81(5): SLU Const s.89(6); SVG Const s.81(5). 255 A&B Const s.87(7); Bds Const s. 105; Bze Const s. 108(6); Dom Const s.88(7); Gren Const s.86(6); Guy Const art.204(5); Jam Const s.96(5); SKN Const s.81(6); SLU Const s.89(7); SVG Const s.81 (6); TT Const s.l 11. 256 A&B Const s.88(5); Bds Const s.79(5); Bze Const s.50(6); BVI Const s.59(5); Cl Const s.57(6); Dom Const s.72(6); Gren Const s.71(6); Guy Const a rt.187(4); Jam Const s.94(6): Mont Const s.49(6); SKN Const s.65(6); SLU Const s.73(6): SVG Const s.64(6).

8. THE FUTURE OF IIINDS

333

In the overseas territories there is less neutrality in the appointment process, in that it is vested in the Governor who is not strictly bound by the advice of the service commission. In two instances he or she merely has to consult with other authorities,257 while in another two instances, although required to act in accordance with the commission’s advice, he or she may disregard that advice if compliance “would prejudice Her Majesty’s service.”258 The combination of these provisions produced a result greater than the sum of their individual parts in one instance. In AG v Grenada Bar Association,259 Malcolm Holdip was appointed by the Governor General as DPP for two years by contract. At the end of the two-year contract, the government refused to renew it and the Bar Association brought proceedings challenging the validity of the contractual term of office. The Court of Appeal held that the power of appointment by the Governor General under the constitution does not include the concept that it is at or during the pleasure of the Governor General, and the DPP cannot be removed on any ground other than inability or misbehaviour before he attains the prescribed age. Thus, the provisions of s.86(6) of the Constitution created an appointment until the prescribed age. Considering the totality of the provisions of the Grenada Constitution regarding the appointment, tenure, removal and functioning of the DPP, the Court of Appeal described the office as being “under the umbrella of the judiciary”. The Court compared the duties of judges with that of the DPP to “ensure that the criminal justice system is independent of political and other improper influences and operates on the lofty principles of equality before the law”.260 8. The Future of Hinds (a) No exclusivity The pioneering case of Hinds has become associated with a notion of separa­ tion of powers as an impenetrable barrier between the branches, representing a potent shield for the citizen against tyranny.261 In that case, Lord Diplock provided an expansive read of Caribbean constitutions as Westminstermodelled and presented a very pure definition of separation of powers, albeit obiter. He said that it was well established that the absence of express words in the constitutions did “not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively.”262 257 Mont Const s.85(2): TCI Const s.91. 258 BVI Const s.96; Cl Const s. 106. 2,9 AG v Grenada Bar Association GD 2000 CA 2 (CARILAW) February 21, 2000 (CA Gren). 260 Grenada Bar Association, above, at [12]. 261 BCB Holdings Ltd v TG[2013] CCJ 5, (2013) 82 W.I.R. 167 (CCJ Bze) at [19]; Bowen v AG BZ 2009 SC 2 (CARILAW) February 13, 2009 (SC Bze) at [66]. 262 Hinds v AG (1975) 24 W.I.R. 326 at 331; [1976] 1 All E.R. 353 (PC Jam) at 361 (emphasis added).

7-034

3 34

III!- DISTRIBUTION A N D SHPARAl'ION OF GOVHRNMI N1AI I’OWl RS

This notion of exclusive control of powers by each organ plainly goe: too far.263 It is readily accepted that significant overlaps exist between tht executive and legislature. The separation between the judiciary and the othei branches is the one most strongly enforced.264 Reluctant to disrupt this foun­ dational authority, over time the Privy Council has undercut many of it: sweeping assertions about a strict separation of powers.265 (b) Efficiency and development in modern government (i) The need for operational jlexibility 7-035

A rigid separation of powers is “neither desirable nor possible.”266 Moderr government requires the co-operation of various personnel and powers, sc that maintaining a rigid separation among the branches would be counter­ productive and inefficient. In the worst case scenario, it could thrust the executive and legislature into antagonistic positions leading to a deadlocked government.267 By contrast, participatory processes of decision-making can promote good governance through collaboration and the efficient use ol scarce resources.268 The permeability of boundaries between the branches ol government is a contentious issue even in American jurisprudence, whose system espouses the purest form of the doctrine. Commentators have identi­ fied divergent approaches among courts between formalism, which contem­ plate “bright-line” divisions among the branches, and functionalism, which tolerates some merger of function in the interests of efficient government.26'1 The latter has been unavoidable in the context of modern realities where “[t]he government we have built and now live with has attained a complex­ ity and intermarriage of function that beggars the rationalistic tripartite schemes of the eighteenth century.”270 In Cooper v Director o f Personnel Administration,211 the Privy Council was squarely confronted with these competing objectives of autonomy and 263 O. Hood Phillips, "A Constitutional Myth: Separation of Powers" (1977) 93 LQR 11; Bata Shoe Company v CIR GY 1975 HC 3 (CARILAW) January 15, 1975 (HC Guy); Astaphan v Comptroller o f Customs (1996) 54 W.I.R. 153 (CA Dom); BC'B Holdings Ltd v AC [2013] CCJ 5, (2013) 82 W.I.R. 167 (CA Bze) at [27] per Mendes JA. 264 DPR v Mollison [2003] UKPC 6; (2003) 64 W.I.R. 140; [2003] 2 A.C. 411 (PC Jam). 265 Tracy Robinson. “Our Inherent Constitution” in David Berry and Tracy Robinson (eds). 't ransitions in Caribbean Law: Law-making, Constitutionalism and the Convergence of National and International Law (Caribbean Law Publishing. 2013). p.248. 2bb Director o f Personnel Administration v Cooper I T 2005 CA 5 (CARILAW) January 19, 2005 (CA TT) at [29] per Sharma CJ; see also Bata Shoe Company v CIR GY 1975 HC 3 (CARILAW) January 15. 1975 (HC Guy) at 42 per Massiah J. 267 Fred Phillips, Commonwealth Caribbean Constitutional Law (Cavendish, 2002). p.23. 2d8 James Gardner, “Democracy without a Net? Separation of Powers and the Idea of SelfSustaining Constitutional Constraints on Undemocratic Behaviour" (2012) 79 St John’s Law Review 299. 269 Peter Strauss, “Formal and Functional Approaches to Separation-of-Powers Questions: A Foolish Inconsistency?” (1987) 72 Cornell Law Review 488. 270 Strauss, above, at 511 12. 271 Cooper v Director o f Personnel Administration, [2006] UKPC 37; (2006) 68 W.I.R. 477; [2007] 1 W.L.R. 101 (PC TT).

8. THE FUTURE OF HINDS

335

efficiency. On the one hand, it had long since acknowledged that insu­ lating the public service from the political executive was an objective of the Constitution.272 At the same time, to permit Cabinet to set common examinations for all the services—teaching, police and public-—would entail the “economic use of limited resources to avoid duplication where this is unnecessary”.273 The solution was that Cabinet could in fact appoint a board to oversee examinations across the public service, but its use could not be imposed on any service commission.274 Fidelity to the doctrine is therefore maintained by respecting the autonomy of each branch. Another dimension of overlap between the branches is, counterintui­ tively perhaps, its potential for promoting intra-branch accountability by preventing the concentration of power in any single branch. Some diffu­ sion of functions allows one organ to act as a check on the other, reflected in the constitutions by provisions which facilitate “interplay” between the branches in the appointment processes for high offices.275 The doctrine is only violated where one branch purports to exercise the whole of the power of another,276 whereas diffusion in the form of a partial spread of powers operates as checks and balances would. The search is for maintaining fidel­ ity to the “paradigmatic function which [each branch] alone is empowered to serve”,277 even if some aspects are shared with another branch to some degree.278 Also important is for each branch to retain its autonomy, which is another way of saying that even where powers are diffused, one branch cannot dictate what the other must do.279With these safeguards, the outcome is a system which operates with checks and balances, designed to prevent an “over-concentration” of power in any one branch of government.280 In its practical application, therefore, the doctrine accommodates a degree of overlap among the branches in the interests of both efficiency and democracy. (ii) New courts and efficiency in the administration o f justice In Suratt v AG,2&1 the Privy Council cleared the way for the establishment of specialist tribunals to address the demands on the legal system that can be better met by such specialist bodies.282 The efficiency of the administration of 272 Thomas v ,4G(1981) 32 W.I.R. 375 at 381; [1982] A.C. 113 (PC TT). 273 Thomas, above, at [23], 274 Thomas, above, at [29]. 275 Director o f Personnel Administration v Cooper TT 2005 CA 5 (CARILAW) January 19, 2005 (CA TT) at [33]. 276 James Madison, “Federalist 47” in John Jay, Alexander Hamilton and James Madison, The Federalist Papers (Clinton Rossiter ed. Penguin Books, 1961), pp.300. 302-03. 277 Peter Strauss, “Formal and Functional Approaches to Separation-of-Powers Questions: A Foolish Inconsistency?” (1987) 72 Cornell Law Review 488, 493. 278 Bata Shoe Company v C1R GY 1975 HC 3 (CARILAW) January 15, 1975 (HC Guy) at 33 per Massiah J. See also Astaphan v Comptroller o f Customs (1996) 54 W.I.R. 153 (CA Dom). 279 Cooper v Director o f Personnel Administration [2006] UKPC 37; (2006) 68 W.I.R. 477; [2007] 1 W.L.R. 101 (PC TT). 280 Dodo v State (CCT 1/01) 2001 (3) SA 382 (CC SA) at [16] per Ackerman J. 281 Suratt v AG [2007] UKPC 55; (2007) 71 W.I.R. 391; [2008] A.C. 655; [2008] 2 W.L.R. 262 (PC TT). 282 Leighton Jackson, “The Ideology of Judicial Decision-Making in the Commonwealth Caribbean: Interrogating the Doctrine of Separation of Powers” (UWI Faculty of Law. Faculty Workshop Series, Barbados, June 4, 2009). pp.31 2. See below para.10 022.

7-036

336

THE DISTRIBUTION A N D SEPARATION Ol' GOVERN MEN I AL POWE RS

justice had to be balanced against an independent judiciary. Some interfer­ ence with the jurisdiction of the superior courts will be permitted if it is not serious and if the new tribunal has adequate independence to perform its functions. As Mendes points out: “What emerges, in other words, is a conception of the separation of powers doctrine under which the exercise of judicial powers can be dispersed among an independent judiciary, including but not limited to the High Court.”28'’ Far from being an absolute or sacrosanct rule, the intra-branch separation of powers in the judiciary is now a matter of degree.284 In Suratt, the Privy Council upheld the Equal Opportunity Act 2000, which created an Equal Opportunity Tribunal constituted by a chairman and two lay assessors. The tribunal had jurisdiction to decide discrimination cases that overlapped with and potentially excluded the High Court’s jurisdiction to hear antidiscrimination cases under the redress clause of the bill of rights in the Constitution.285 The tribunal was headed by a Chair who did not enjoy the constitutional protections for his or her independence afforded to a superior court judge, because the protections for the Chair’s independence were not entrenched in the Trinidad and Tobago Constitution. On the face of it, this is the very vice that Hinds trumpets loudly against: the transfer of jurisdiction belonging to the higher judiciary to a new court which enjoys less constitutional protection. In a surprising twist, by a majority decision the Privy Council upheld the tribunal’s constitutionality. Baroness Hale for the majority acknowledged that the Act interfered with the jurisdiction of the High Court, just not seriously so. From her perspective, potential overlaps were not significant, particularly since the Act extended the categories of actionable discrimination. Moreover, safeguards existed in that the com­ plainant’s consent was needed to bring a case before the tribunal and in the availability of an appeal to the Court of Appeal.286 For the majority, it was eminently understandable in the modern context of heavily increased judicial workloads for the government to seek to create new courts.287 There are some slippages in the reasoning of the majority in Suratt. The Tribunal covered new ground by providing protection against discrimina­ tion by non-state actors which the Constitution did not contemplate. But the claim that “new” types of discrimination are covered by the Act was a misleading one because the Constitution of Trinidad and Tobago contains an open-ended provision for equality before the law.288 A better way of explain­ ing the decision in Suratt would start with identifying the characteristic juris­ diction of the superior courts that was ostensibly transferred to the tribunal in part. Hinds identified this characteristic jurisdiction as determinations in 283 Douglas Mendes, “An Appreciation of Ralph Carnegie’s ‘Floreat The Westminster Model? A Commonwealth Caribbean Perspective"' (UWI Faculty of Law, Faculty Workshop Series, Barbados, October 22, 2010), p .15. 284 Mendes, above. 285 TT Const s.4(b), (d). 286 Suratt v AG [2007] UKPC 55; (2007) 71 W .I.R. 391; [2008] A.C. 655 (PC TT) at [48], [56] per Baroness Hale. 287 Suratt, above, at [42], [52], 288 TT Const s.4(b), (d).

8 .1 HE FUTURE OF HINDS

337

relation to serious crimes, substantial civil matters and supervision of inferior tribunals. To this we can add original jurisdiction in relation to breaches of the constitution; this was the superior court jurisdiction in issue in Suratt. The constitutions do not contemplate that the superior courts have exclusive jurisdiction where the constitutional breach is a violation of a fundamental right or freedom. The redress clauses assume that alternative remedies may exist at common law and under legislation, for actions which amount to a breach of the bill of rights. Indeed, it is not uncommon for states to seek to strengthen access to justice for violations of human rights by enacting legislation that makes provision for relief that is available in other courts, particularly summary courts; the best example of which is domestic violence legislation. Suratt has subtly undermined Hinds by acknowledging that some powers associated with the higher judiciary do not have to be exclusively vested in judicial officers having the identical protection as that enjoyed by judges of the Supreme or High Court. The question in each case is whether the jurisdiction vested in a new court is wide enough to constitute a significant part of the jurisdiction that is characteristic of the Supreme or High Court, a question which is one of degree. In answering that question, a balance has to be struck between the importance of having an independent judiciary on the one hand, and the fact that the increasing demands on the legal system can sometimes better be met without recourse to the judges of the Supreme or High Court. As pointed out in a different context, but equally applicable here, is that an overwhelmed judiciary is no better than a diminished one in protecting rights and freedoms.289 The way is thus cleared for the estab­ lishment of specialist tribunals similar to those which are a feature of the Westminster system. What emerges, in other words, is a conception of the separation of powers doctrine under which the exercise of judicial powers can be dispersed among an independent judiciary, including but not limited to the Supreme or High Court. Hinds, panoramic read of independence constitutions and their features was useful in its time and context, but it adopted a naive view of separation of powers. Suratt suggests that it is now up to modern courts to attempt to contain and apply the doctrine within practical, workable limits. (iii) Privatisation o f the public service The independence of the public service has been undercut by privatisation initiatives introduced through ordinary legislation which have dismantled the public service and the insulation that public servants enjoyed under it from political interference.290 Only the core functions of government such as maintenance of law and order, the administration of justice, and defence are 289 Peter Strauss, “Formal and Functional Approaches to Separation-of-Powers Questions: A Foolish Inconsistency?” (1987) 72 Cornell Law Review 488, 523. 290 Leighton Jackson, “The Ideology of Judicial Decision-Making in the Commonwealth Caribbean: Interrogating the Doctrine of Separation of Powers” (UWI Faculty of Law, Faculty Workshop Series, Barbados. June 4, 2009): Douglas Mendes, “An Appreciation of Professor Ralph Carnegie's ‘Florcat The Westminster Model? A Commonwealth Caribbean Perspective’” (UWI Faculty of Law, Faculty Workshop Series, Barbados, October 22, 2010) at 14. See also below para. 10 020.

7-037

338

1HE DISTRIBUTION AND SEPARATION OP CiOVI R N M hN lA T ROW HRS

seemingly exempt from being transferred to the private sector via ordinary legislation. It was held in Perch v AG29' that there was nothing unconsti­ tutional in the divestment of postal services from central government to a corporation. Lord Bingham adverted to a widespread international trend by governments to divest functions previously carried on by them, whether directly or indirectly, but which form no part of the core functions of govern­ ment. Into this category fell the creation of TT Post. The Board concluded that there is nothing “intrinsically governmental in collecting and delivering letters and parcels”292 and the offices of the appellants in the postal service did not constitute “public office” within the meaning of the Trinidad and Tobago Constitution, which enjoyed protection through the Public Service Commission.293 As a result the appellants, who were effectively forced to accept early retirement as no comparable position could be found for them elsewhere in the public service, suffered no constitutional breach. In assessing the constitutionality of privatisation, a distinction is drawn between intrinsic or “core” governmental activities and those which can be suited to commercial ventures. The latter categories would include the postal service, the telephone service, transportation, lotteries, meteorological ser­ vices and scientific laboratories, libraries and even hospitals. However, this core/non-core distinction was rejected by the Guyana Court of Appeal in Chue v AG.m The issue in the case concerned the constitutionality of legisla­ tion creating a private body—the Guyana Revenue Authority (GRA)—to which was transferred the functions associated with the assessment of taxes and collection of customs duties. The Court of Appeal held that such a transfer was constitutionally permissible, on the basis that art.99(2) of the Guyana Constitution enabled Parliament to confer any executive function on any person or authority. Though the Court of Appeal described the prin­ ciple of separation of powers as fundamental to and inhering in the Guyana Constitution, it gave little consideration to the intra-branch dimensions of the doctrine which are designed to limit political interference and manipula­ tion in core functions of the executive. Chue was not appealed further, but its premises were tangentially consid­ ered and tacitly approved in a different case heard by the CCJ. In Griffith v GRA,295 the appellant was a former customs officer who had been trans­ ferred to the GRA upon its privatisation, but was subsequently dismissed for unauthorised absence from duty. The appeal raised certain preliminary procedural issues, and in the course of resolving these the CCJ held that employees of the GRA were not holders of public office.296 The judgment offered no explanation for this conclusion, other than a reference to the first instance decision in Chue as well as the decisions in Perch and Tamlin v Hcinnaford291 These were surprising choices. Tamlin is an English case that considered the status of the British Transport Commission. Both the

291 292 293 294 295 296 297

Perch v AG [2003] UKPC 17; (2003) 62 W .I.R. 461 (PC TT). Perch, above, at [13]. Perch, above, at [15]. Cliue v AG (2006) 72 W.I.R. 213 (CA Guy). Griffith v GRA [2006] CCJ 2 (AJ); (2006) 69 W.I.R. 320 (CCJ Guy). Griffith, above, at [46]. Tamlin v Hannaford [1950] 1 KB 18 (CA Eng).

8. THH FU TURE OF HINDS

339

subject-matter (transportation) and legal context (parliamentary supremacy) offered little, if any, points of comparison. It is also regrettable that the CCJ returned to the first instance decision in Chue, bypassing the crucial holding in the Court of Appeal which rejected the distinction between core and non­ core functions. Furthermore, the analogies to the decision in Perch were not apposite, for the outcome there was dictated by the fact that collecting mail was not treated as an “intrinsic” governmental activity. Lord Bingham accepted in principle that divesting core functions such as the maintenance of law and order could raise “strong arguments” for “holding that such a change contradicted the express terms of the Constitution and assumptions on which it was based”.298 The key question was whether tax collection is a core function. Nelson JA, who gave the decision of the CCJ in Griffith, had also given the Court of Appeal decision in Perch while on the Trinidad and Tobago bench. Interestingly, in the latter he had recognised that: “It may well be that matters involving the defence of the Republic, the maintenance of law and order, national security, the power to impose taxes and such matters cannot be delegated to statutory corporations.”299 Unfortunately he did not pursue this point in Griffith. Tax assessment and duty collection involve activities of highly intrusive scope and are buttressed by a potent arsenal of coercive powers. If entrusted to persons without secu­ rity of tenure who are subject to political interference, that increases the potential for their misuse for partisan political gain.300 (c) Separation of powers: A supraconstitutional principle? The separation of powers doctrine is a justiciable constitutional principle that can lead to the invalidation of ordinary legislation as seen in Hinds. It is not a supra-constitutional principle that can call into question the provisions of the constitutions. In the mandatory death penalty case from Barbados, Boyce v R,301 Lord Hoffmann emphasised that separation of powers was not “a principle which overrode even the terms of the Constitution itself”.302 He described it as “a pithy description of how the Constitution works. But different Constitutions apply this principle in their own ways and a court can concern itself only with the actual Constitution and not with what it thinks might have been an ideal one”.303 298 Perch v AG [2003] UKPC 17; (2003) 62 W.I.R. 461 (PC TT) at [13]. 299 AG y Perch TT 2000 CA 48 (CARILAW) December 19, 2000 (CA TT) (emphasis added). 10(1 On the filing of a complaint against the head of the GRA and vindicating these con­ cerns see KNews, “Accounting Body Launches Probe against G R A 's Chief over Tax Info Leaks” (Kaietear News, Georgetown, October 22, 2014) available at http.llwww.kiiieteurnewsonliue.com/20l4HOl22lciccoimting-hody-launches-probe-agamst-gras-chief-over-tax-info-leaksl [Accessed February 25, 2015]. "M Boyce v R [2004] UKPC 32; (2004) 64 W.I.R. 37; [2005] 1 A.C. 400 (PC Bds). 1(12 Boyce, above, at [70]. m Boyce, above.

7-038

340

UIH DISI RIBl 11 ION A ND SEPARATION OF (K)VKRNMF.N 1Al POWERS

The Privy Council was correct to discourage the formulation of a strict, abstract andjusticiable notion of separation of powers and to encourage con­ sideration of the actual provisions of the text.204 However, it may be ‘'going too far to suggest that the actual provisions will answer all ques­ tions satisfactorily about how governmental power is distributed or that there will not be conflicts and tensions in the text.'1205 Hinds had established that the judicial power to determine the sentence in an individual case cannot be transferred to the executive. The offence created under the Gun Court Act prescribing mandatory sentence of detention at hard labour during the Governor general’s pleasure was unconstitutional. Effectively decisions would be made by a Detention Review Board that was an executive body. Counsel for various men on death row in Trinidad and Tobago and Barbados sought to apply this principle in relation to the mandatory death penalty.206 They argued that the effect of the mandatory penalty combined with the power of pardon by the Head of State or an administrative body left the ultimate decision on the sentence up to the executive. According to this argument, since the penalty was automatic upon conviction for murder, the decision whether a convicted person lived or was executed rested with the executive. It therefore involved the transfer of a judicial power —to punish in an individual case to the executive. The Privy Council dismissed this argument. It held that because the constitution itself vested the power of pardon in the Head of State, there was no viola­ tion of the separation of powers as that doctrine was also a creature of the constitution. To conclude otherwise, the majority of Privy Council said, would be tantamount to saying that the constitution is inconsistent with itself.207 This interpretation is not necessarily correct. Indeed it is begging the question. The Privy Council failed to address the crux of the argument about separa­ tion of powers -was the combined effect of the mandatory sentence and clemency a transfer of judicial power to the executive? Its claim that both the mandatory sentence and executive clemency were in accordance with the constitution and therefore beyond constitutional scrutiny is not entirely persuasive. Clemency is undoubtedly a constitutional guarantee. On the other hand, the mandatory sentence is provided for in an ordinary law that enjoyed constitutional protection from rights challenges as a result of the general savings law clause. The constitution does not preclude a constitu­ tional challenge to that ordinary law if the challenge lies outside the bill of rights, such as the violation of the separation of powers doctrine, the point in issue. Counsel for the men on death row were not suggesting that the prerogative of mercy was a violation of separation of powers. It was more that the mandatory death penalty, operating in the context of clemency, 304 Tracy Robinson, “Our Inherent Constitution” in David Berry and Tracy Robinson ( e d s ). Transitions in Caribbean Law: Law-making, Constitutionalism and the Convergence o f National and International Law (Caribbean Law Publishing, 2013), p.248. 305 Robinson, above, at pp.250 51. 306 Boyce v R [2004] UKPC 32, (2004) 64 W.I.R. 37, [2005] 1 A.C. 400 (PC Bds); and Matthew v State [2004] UKPC 33, (2004) 64 W.I.R. 412. [2005] 1 A.C. 433 (PC TT). 307 Boyce, above, at [70]; Matthew, above, at [28].

8. THE FUTURE OF HINDS

341

generated a constitutional problem. If the Privy Council accepted the claim about the combined effect of the sentence and clemency there would be no violence to constitutional supremacy in holding that the penalty of death must be discretionary, consistent with the separation of powers doctrine, while maintaining consideration of clemency in relation to the death penalty where it is handed down, as provided for in the constitution.

CHAPTER 8 JUDICIAL INDEPENDENCE

1. Judicial Power

The judiciary is the arm of government entrusted with the judicial power of the state. The chapters devoted to the judiciary in Caribbean constitu­ tions, and the provisions related to the judiciary that are incorporated into Caribbean constitutions from the UK Supreme Court Order 1967,' give exclusive or preeminent attention to the superior courts - -Supreme Courts, High Courts or the Grand Court, Courts of Appeal, the Judicial Committee of the Privy Council and the Caribbean Court of Justice (CCJ). The Eastern Caribbean Supreme Court (ECSC) is a regional court with both a High Court and appellate jurisdiction that serves the nine members and associate members of the Organisation of Eastern Caribbean States (OECS).2 The provisions of the UK Supreme Court Order 1967 which established the Court are incorporated and entrenched in the constitutions of the member states. A few Caribbean constitutions have been amended to recognise the CCJ, a regional court established by a CARICOM treaty, as their final appellate jurisdiction.3 Some of the newer and amended Anglophone Caribbean constitutions also identify subordinate courts and tribunals within their chapters on the judiciary.4 The constitutions that do not, nevertheless assume that judicial power is exercised by subordinate judi­ cial officers, most notably magistrates, and the existence of inferior courts exercising subordinate jurisdiction. Magistrates fall under the purview of the specialised judicial service commissions established by the constitutions and the Supreme Court Order.5

1 Supreme Court Order 1967 (SI 1967/223), UK. 2 The Eastern Caribbean Supreme Court (ECSC) operates in the six member states of the Organisation of Eastern Caribbean States (OECS: Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines) and the three associate members which are overseas territories (Anguilla, British Virgin Islands and Montserrat). 3 So far the CCJ exercises final appellate jurisdiction in Barbados, Belize and Guyana. In 2014, the Dominica House of Assembly enacted legislation to allow that state to access the appellate jurisdiction of the CCJ. 4 Bze Const s.93; BVI Const s.90; Cl Const s. 104; Guy Const art.l22A; M ont Const s.81; TCI Const ss.83 85. 5 Suratt v AG [2007] UKPC 55, (2007) 71 W.I.R. 391, [2008] 1 A.C. 655 (PC TT) at [40], [56]; COP V Davis (1993) 43 W.I.R. 1, [1994] 1 A.C. 283, [1993] 4 All E.R. 476 (PC Bah).

8-001

JUDICIAL IN D L P h N D IN C l

2. Elements of Judicial Independence

(a) Judges must be free from external interferenee 8-002

Judges have an overriding duty to apply the law. The core of judicial inde­ pendence is the freedom of judicial officers to perform their judicial func­ tions on the basis of the facts in front of them, in accordance with the law and without undue outside interference, threats, inducements or pressure/1 A judge must examine the facts and relevant law and make his or her deci­ sions based on what he or she thinks is the right outcome, and not out of fear or favour for any particular person or interest. Hyatali CJ explained that '‘the only subordination to which a Judge was subject, was the body of legal doctrine enunciated by his brethren in the past and the laws duly enacted by Parliament”.7 The amended Constitution of the Co-operative Republic of Guyana cap­ tures this aspect of judicial independence in the new art.l22A(l) which states that: “All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.” Interference in how a judge conducts and decides his or her cases can come from many quarters. First and foremost, judges must be free to carry out their duties without undue pressure from the other branches of government, especially the executive.8 This liberty is essential if superior court judges are to carry out boldly their duty to invalidate laws and state action that violate the Constitution. Furthermore the chapters in Caribbean constitu­ tions protecting fundamental rights and freedoms “bring the judiciary into political prominence” by requiring judges to safeguard the rights of indi­ viduals against encroachment by the state.'7A judge’s independence includes freedom from pressure from judicial peers, especially a Chief Justice, to decide a matter in a particular way. Judicial independence also means that judges must act independent of pressures that come from the parties to the (’ See R v Jones (2007) 72 W.I.R. 1 (SC Bah) at [7]. See also UN Basic Principles on the Independence of the Judiciary (Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan from August 26 to September 6, 1985 and endorsed by General Assembly resolutions 40/32 of November 29, 1985 and 40/146 of December 13, 1985 (UN Basic Principles on Independence of the Judiciary 1985) art.2. The Hon Chief Justice Sir Isaac Hyatali, “Address” (Opening of the 1982 83 Law Term. Trinidad and Tobago, October 4, 1982), at 3. 8 fJCHR (1998) Ltd v Marshall-Burnett [2005] UKPC 3; (2005) 65 W.I.R. 268: [2005] 2 W.L.R. 923 (PC Jam). 9 Keith Patchett, "Safeguards for judicial independence in law and in practice’ in Commonwealth Magistrates Association, Commonwealth Magistrate's Conference. Kuala Lumpur, Malaysia” (Commonwealth M agistrates’ Association, 1975). pp. 115, 128.

2. ELEMENTS OF JUDICIAL INDEPENDENCE

345

dispute, pressure groups, friends, family, or other members of the society. Nor should they orient their decision-making towards public approval. Judicial independence demands that judges have an open mind and not be fettered by their past political affiliations or the opinions they had previously formed on the legal questions that are before them. Judges should not be embarrassed about revising or rejecting a view they had earlier formed or expressed.10 (b) The judiciary must have control over the judicial function Judicial independence means that judges should have control over the determination of issues of a judicial nature1’ and control over adminis­ trative matters that bear directly on the exercise of the judicial function. The judiciary must be free to function as an institution without undue dependence on the other organs of government.12 There must be coopera­ tion between the judiciary and the executive about the funding and the administration of the courts. However, the judiciary should be allocated adequate financial resources and staff for its proper administration of the judicial function, have meaningful control over the relevant budgetary allocation, while maintaining the appropriate accountability for the funds allocated.

8-003

(c) Judges must not “descend into the arena” Judicial independence goes both ways. It means protection from external interference from other branches and, vice versa, that judges should gener­ ally keep out of the political arena and business of other organs of govern­ ment. To maintain their independence, judges must exercise care in what they say and do.13 As part of its normal function to uphold the rule of law, the judiciary reviews the exercise of executive power to ensure compliance with the law. At the same time, the integrity of the judicial function and public confidence in the administration of justice are compromised if judges appear to be unduly involved or interfering in executive functions.14 The rationale for this type of non-interference extends beyond protecting the independence of judges to wider notions of democratic governance. Unlike politicians, judges are not directly accountable through elections to the public for their decision-making.15

10 Panton v Minister of Finance [2001] UKPC 33; (2001) 59 W.I.R. 418; [2001] 5 R.L.C. 132 (PC Jam) at [11]. 11 UN Basic Principles on Independence of the Judiciary 1985, art.3. 12 Valente v R [1985] 2 S.C.R. 673 (SC Can) at [17]. 13 Re ChieJ Justice of Gibraltar [2009] UKPC 43; [2010] 2 L.R.C. 450 (PC Gib). 14 Cabinet of Antigua and Barbuda v HMB Holdings Ltd AG 2003 CA 3 (CARILAW) January 28, 2003 (CA A&B). See also South Africa Association o f Personal Injuries Lawvers v Heatli [2001] 4 L.R.C. 99 (CC SA). 15 Cabinet of Antigua and Barbuda, above.

8-004

346

JUDICIAL IND EPEN DENCE

(d) Personal and institutional dimensions16 (i) Personal independence 8-005

Judicial independence demands that judges ultimately listen to their own judgment and make up their own mind.17 This cannot be legislated; in the end it rests in the “heart and mind of the judge.” 18Judges take a solemn oath to administer justice fairly and impartially.19 Individually they must have a staunch commitment to honouring this pledge, even where their decisions will be unpopular.20 There must be safeguards in place to protect this personal, or what others call “substantive”, independence.21 The chief safeguards are the manner in which the judge is appointed and his or her security of tenure and financial security.22 Whether a judge is acting independently in cases he or she is deciding is a question of fact. However, if a judge does not enjoy the minimum safeguards for judicial independence, then the basic conditions for the exercise of personal independence will not have been met. These safe­ guards are not for the benefit of the judges themselves. Ultimately, they are meant to protect the interests of litigants and the rule of law.2’ (ii) Institutional independence

8 006

Judicial independence must be systemic or collective, a feature of the judici­ ary as an institution.24 The judiciary should be respected as a separate and independent branch of government.25The focus here is not on how individual judges perform their functions but more generally on the performance of the court system and its relationship to the other branches of government.26It must be independent in fact as well as in appearance.27 Institutional independence 16 Valente v R [1985] 2 S.C.R. 673 (SC Can). Approved in R v Junes (2007) 72 W.I.R. 1 (SC Bah) at [10]. 17 Keith Patchett, “Safeguards for judicial independence in law and in practice' in Commonwealth Magistrates Association, Commonwealth Magistrate’s Conference, Kuala Lumpur, Malaysia" (Commonwealth Magistrates’ Association, 1975), pp.l 15. 129. 18 Mackay Commission, “Report of the Commission Appointed to Enquire into and Report and make Recommendations on the Machinery for the Administration of Justice in the Republic of Trinidad and Tobago” (Mackay Report) (2000) 5 Carih LB 55, 57. 19 Above. 70 Chief Justice Beverley McLachlin, “Professional Independence and the Rule of Law: Remarks of the Right Honourable Beverley McLachlin, PC, Chief Justice of Canada” (2007) 23 Windsor Rev Legal & Social Issues 3, 9. 21 B.J. Van Heyst, “The Netherlands” in Shetrcet and Deshenes (cds) Judicial Independence: the contemporary debate (Dordrecht: Martinus Nifhoof, 1985). pp.240, 241. 22 Valente v R [1985] 2 S.C.R. 673 (SC Can) at [26] [27] per Le Dain J. 22 Chief Justice Beverley McLachlin, “Professional Independence and the Rule of Law: Remarks of the Right Honourable Beverley McLachlin, PC, Chief Justice of Canada" (2007) 23 Windsor Rev Legal and Social Issues 3, 8. "M Pamela Karlan, “Judicial Independences” (2007) Geo LJ 1041, 1051. 25 Hon Justice Michael Kirby, “Independence of the legal profession: global and regional challenged” (2005) 26'Aust Bar Rev 1,4. 7i' I VI

I N I ) I !’ ! M > l Nl i

crtifieale ihal the law in dispute in the judicial proceedings was compatible with the constitution. 1 lie C ourt of Appeal ol Jamaica heard a cha lienee by the I’antons to the constitutionality of the Linancial Institutions Act 1992 I inder the authority of this Act the relevant minister took charge of compa­ nies they were involved in. In Pan I on r M inis lev j i-iruina . the Pantons argued that the ('ourt of Appeal was not an ’‘independent and impartial" tribunal in accordance with s 20-’ 1 of the Jamaica Constitution because the Piesident of the Court ot Appeal should have been automatically disqualified from silling in this case. At the time the Act was passed, the President ol the Court of Appeal, Carl Rattray, was a member of Parliament and held the posts of minister of legal affairs and Attorney General. As Attorney General the principal legal adviser to the government, he had signed a standard cei tificate indicating that the law was compatible with the Constitution lie retired as Attorney General in 1993 and this appeal was heard in 199,S. I he Privy ( ouneil held that there was no breach of s.20 of the Constitution, t he President was not a champion of the constitutionality of the measure while Attorney General and had not been actively engaged in the promotion of the bill, llis past political history was not enough to disqualify him. Indeed the Privy Council said that ’‘[experience outside the law, whether in politics or elsewhere, may reasonably be regarded as enhancing a judicial qualifica­ tion rather than disabling it.”- '1 Had he introduced the Bill to Parliament or assumed responsibility for securing its passage in Parliament or promoted it another ways, Lord Clyde said the answer may have been dilfcrent. Bias may also have been established if the length of time between his actions as Attorney General in relation to the Act and his sitting in the t ourt of Appeal in this matter had been much shorter. (e) Appointments procedures: advertisements and interviews 8-042

traditionally Caribbean superior judges have been “invited’ to join the bench after private and confidential consultations of the chair of the spe­ cialised service commission with members of the commission and colleagues about the ability, integrity and suitability of the prospective judge. In the case of senior lawyers in the public service, joining the bench was viewed as a promotion. The argument has been made that lawyers at the private and public bar are well known to the service commissions and the advertisement of openings for judicial positions was frowned upon. At the opening of the 1980 Law Term in Trinidad, Chief Justice Sir Isaaae Hyatali suggested that **[iIdeally, no man should seek the office of a Judge. Like the priesthood, only he who is invited should fill it.”27'' Today there is growing support for a more transparent process for appointing judges. There have been complaints about cronyism injudicial appointments in the Caribbean. It has been sug-

’ 11 Pinittm I Minister o j I'iiitincc |2()()1J U K P C 33: (2001) 50 W .I.R . 41S; |2l)01j 5 t R.C I 52 (PC lam). ' ,l Now repealed and replaced by Jam Const s .16. ftinton v M inister ) Finance [2001] U K P C 33: (2001) 59 W .I.R . 41S: (2001 ] 5 1 ,R.( . 1 J1 (PC Jam) at fl 7J. 1 lie lio n Chief Justice Sir Isaac l k a i a l i . ’‘Addiess” (Opening of llie 19N2 S.3 Law lerm. Trinidad and Tobago. October 4. 19)32). at4.

5. APPOINTMENT A N D PROMOTION OF JUDGES

383

gested that “only those who hang out together get appointed” and that the members of the service commissions are all part of a network of senior male lawyers and they appoint those who are already closely connected to them.274 All judicial positions should be advertised,275 especially where the pool of potential candidates of a given jurisdiction is very small. Such advertisements could usefully include other Caribbean jurisdictions and the Commonwealth. An increasing number of Caribbean judiciaries now advertise before making appointments. (f) Qualifications The main qualification for office as a superior court judge that is spelt out by Caribbean constitutions or ordinary legislation is significant experience at the bar in the jurisdiction or Commonwealth. For example, in Belize, the Constitution specifies that a person is not qualified to be a justice of the Supreme Court unless that the person has been qualified to practice as an attorney in a court in Belize or as an advocate in a court in any other part of the Commonwealth having unlimited jurisdiction either in civil or criminal causes for at least five years.276The CCJ which is a sui generis court with appel­ late jurisdiction and original jurisdiction to interpret the Revised Treaty of Chaguaramas Treaty has two categories of persons who are entitled to apply to sit as CCJ judges. First, there are persons who have had a distinguished tenure as superior court judges in contracting states to the Treaty, the Commonwealth, or a civil law country.277 Distinguished lawyers and law teachers are the second category of persons qualified to sit on the CCJ.278 They must have at least 15 years’ experience in their field in a CARICOM Member State, a contracting state, the Commonwealth or a civil law country with a jurisprudence that is similar to that applied in the civilian contracting states. The inclusion of civil­ ian lawyers and law teachers represents a notable advance. Judges should not only be suitably qualified by their training, they should have access to appro­ priate ongoing professional training as a judge to be able to carry out their functions effectively because a “lack of adequate training and professional knowledge also means that judges are more easily influenced”.279 A requirement dealing with experience at the bar is inadequate to ensure that the judiciary is competent and independent.280 While qualifications and experience are fundamental elements of a strong and independent judiciary, certain personal characteristics like empathy, courtesy, integrity, discretion,

274 Selwyn Ryan, The Judiciary and Governance in the Caribbean (SALISES UWI, 2001), at 75. 275 See Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence (adopted on June 19, 1988 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association), principle II.l. 216 Bze Const s.97(3). 277 Agreement Establishing the Caribbean Court of Justice, art.IV.lO.a. 278 Above, art.IV.lO.b. 279 UN HRC “Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy” (2009) U N Doc A/HRC/11/41, para.81. 280 See Hugh Rawlins, “Constitutional Reform in Barbados: Strengthening the Judiciary” (2001) 6 Carib LB 18.

8-043

184

JUDIC IAL INDHPhNDLNCE

conscience and fairness are also essential to effective and impartial judging.281 These qualities in the end rest in the “heart and mind of the judge,”282 but they ought to be explicitly considered in the appointments process. The CCJ Treaty is a step forward in that it requires consideration of the following cri­ teria in appointing a CCJ judge: high moral character, intellectual and ana­ lytical ability, sound judgment, integrity, and understanding of people and society.282 In addition, there should be no discrimination in the selection and appointments process.284 Diversity and equality are now articulated goals in the appointments process in many countries. 6. Security of Tenure 8

044 Judges should have security of tenure until retirement the expiry of their term of office with a guarantee of irremovability for that period except in the exceptional circumstance of disciplinary proceedings properly carried out leading to removal.285 Strong security of tenure is the lynchpin of the protec­ tion for judicial independence of superior court judges in Caribbean consti­ tutions. It would be wrong to conclude that magistrates enjoy no protection for their tenure, though they generally enjoy weaker security of tenure than superior court judges.286 Whether presiding over superior or subordinate courts, judges can only be removed from office for cause, upon the advice of the proper functionaj-y and after all the necessary investigations have been undertaken. The rules of natural justice as an element of the constitutional protection of procedural fairness apply to the impeachment process for all judges. (a) Security and term of office for superior court judges

8

045 The office of all superior court judges in the Anglophone Caribbean, includ­ ing those who sit on the CCJ, is constitutionally protected from abolition while there is a substantive holder of that office.287 Most superior court judges in the Caribbean hold office until their retirement or resignation. The Basic Principles on the Independence of the Judiciary 1985 promotes tenure for judges until the age of retirement or such earlier period as determined by the judge.288 The retirement ages for judges of Caribbean superior courts differ across the region with most constitutions providing for the retirement 281 UN Basic Principles on Independence of the Judiciary 1985, art. 10. 282 Mackay Commission, “Report of the Commission appointed to enquire into and report and make recommendations on the Machinery for the Administration of Justice in the Republic of Trinidad and Tobago” (Mackay Report) (2000) 5 Carib LB 55, 57. 283 Agreement Establishing the Caribbean Court of Justice art.IV 11. 284 UN Basic Principles on Independence of the Judiciary 1985 a rt.10. 285 UNHRC “Report of the Special Rapporteur on the Independence of Judges and Lawyers. Leandro Dcspouy” (2009) UN Doc A/HRC/11/41. para.57. 286 Fraser v JLSC [2008] UKPC 25; (2008) 73 W.I.R. 175 (PC SLU) at [14]. 287 Bah Const arts.93(3), 98(2); Bds Const s.80(3), ; Bze Const ss.95(2), 100(2); Ber Const ss.73(2), 77(2); Cl Const ss.95(l), 100(2); Guy Const art. 197(1); Jam Const ss.97(3), 103(4); TT Const s . 106( 2); TCI Const ss.77(2), 80(3); U K Supreme Court Order 1967 s.4(5); Agreement Establishing the Caribbean Court of Justice art.IX. 1. 288 UN Basic Principles on Independence of the Judiciary 1985 art.12.

6. SECURITY OF TENURE

385

of superior court judges in their sixties or up to 70, with the possibility of post-retirement extensions.289 It is not unusual for the Chief Justice and Court of Appeal judges to have a later retirement age than the judges in the High or Supreme Court.290 The President of the CCJ is appointed for a non-renewable term of seven years or until he or she is 72, whichever is earlier. Other judges hold office until the age of 72. In 2007 the CCJ Agreement was amended to very broadly provide that during the “evolutionary phase” where “special circumstances so require”, the service commission can extend the tenure of the President or the other judges to the age of 75.291 Neither of these phrases is defined, which gives the service commission wide discretion in extending the tenure of judges. Giving the President, whose functions include managerial and administrative ones, a fixed term has value and allows for the regular rotation of the leadership of the court. In some courts, the presidency not only rotates but a President continues to be a member of the court as an ordinary judge at the end of his or her presidency. This is not the case with the CCJ. One concern with this model is that qualified candidates for the presidency are unlikely to make themselves available for consideration unless they are close to retirement age because they have no tenure beyond their fixed term. This may unduly restrict the pool of applicants. All courts do not need the same level of protection for their independ­ ence; in general, “the greater the protection given to the higher courts, the greater is the protection that all courts have” because lower courts benefit from the protection of higher courts if their independence is threatened.292 Paradoxically, in some Caribbean states, appellate judges enjoy less de jure security of tenure than the Supreme or High Court judges whose decisions they review. In Bermuda, Supreme Court judges hold office until age 65.293 The Court of Appeal justices hold office “for such period as may be speci­ fied in their respective instruments of appointment”.294 In Belize, a similar position has obtained which was made worse by the Belize Constitution (Sixth Amendment) Act 2008. Justices of appeal are to be appointed by the Governor General on the advice of the Prime Minister after consultation with the Leader of the Opposition “for such period as may be specified in the instrument of appointment”.295 In effect, the amendment to the Belize Constitution provided that where no period was specified in an instrument of appointment, the appointment was to last one year and the office became vacant thereafter. The instruments of the two non-Belizean justices of appeal did not specify a period and this generated greater insecurity of tenure for these judges. In a challenge brought by the Bar Association with the affected

289 Bah Const arts.96(l), (2); Bds Const s.84(l), (2); Bze Const s.98(l), (2); Ber Const s.74(l); Cl Const s.96(l); Guy Const art.l97(2), (2A); Jam Const s. 100(1), (2); TT Const s. 106; TCI Const s.77(5); U K Supreme Court Order 1967 s.8(l). 290 See e.g. Bds Const s.84(l), (2). 291 Protocol to the Agreement Establishing the Caribbean Court of Justice Relating to the Tenure of Office of Judges of the Court (2007) art.l. 292 Van Rooyen v State (2002) 14 B.H.R.C. 297; [2003] 2 L.R.C. 533 (CC SA) at [23], 293 Ber Const s. 74. 294 Above, s.77(3). 295 Bze Const s. 101(1).

J U D K IA I IN D E P E N D E N C E

judges as interested parties. Bar Association o f Belize v A G f H' Legall J con­ cluded that this amendment violated the constitutional protection for judicial independence. lie said: “Security of tenure is connected to the independence and impartiality of the judges. It seems to me that an absence of security of tenure of judges is incompatible with judicial independence and impartiality. The essence ol security of tenure is a tenure, whether until an age of retirement, or for a fixed term for, or a specific adjudicative task, that is secure against inter­ ference by the Executive or other appointing authority. The effect of the amendments is to import a period of appointment of one year in relation to Mottley P and Morrison JA after which their offices become vacant, unless they are reappointed. The amendments impose upon these justices, and not the others, a reliance on the Executive for re-appointment, after the one year period, which the Executive, may for a variety of reasons, refuse to do.”297 Legall J concluded that a “reasonably well informed observer” would form the view that the amendments weakened judicial independence. He declared that the constitutional amendments were unconstitutional because they were contrary to ss.6(7) and 102 of the Belize Constitution. The former section is the right to adjudication by an independent and impartial tribunal and the latter provides judges with security of tenure by prescribing procedures for removal. Legall J also formed the view that the amendments violated the basic structure of the constitution, a controversial proposition.298 He over­ looked the impact of the amendment on the independence of the Supreme Court judges. Weakening the independence of the appellate judges would have a negative impact on the protection afforded to the Supreme Court judges who benefit from the protection enjoyed by the judges above them.299 (b) Post-retirement extensions 8-046

On the date that the term of office of superior court judges ends the day they attain retirement age many have some uncompleted tasks, including cases in progress and judgments to write. Some Caribbean constitutions address this by allowing a transition period in which superior court judges are allowed to continue in office after retirement age to permit them to deliver judgments or to do other things in relation to proceedings that were com­ menced by them prior to reaching the retirement age.300 Some also allow a more general extension for a fixed period up to three years that need not be related to the completion of unfinished judicial work.301 In the case of the 2% Bar Association of Belize v AG Unreported April 19, 2013 (SC Bze). :‘)7 Above, at [11], ?l)R See above para.4 022. 299 See IJCHR (1998) Ltd v Marshall-Burnett [2005] UKPC 3. (2005) 65 W.I.R. 268, [2005] 2 W.L.R. 923 (PC Jam); Van Rooyen v State (2002) 14 B.H.R.C. 297. [2003] 2 L.R.C. 533 (CC SA). 31)0 For High or Supreme Court judges see Bah Const art.96(l). (2); Bds Const s.84(lA), (2); Bze Const s.98(l); Ber Const s.74(1): Cl Const s.96(l): Jam Const s.100(1),(2); TT Const 136(2). 301 See Bah Const art.96(1); Bds Const s.84(1 A); Bze Const s.98(l); Ber Const s.74(1); Cl Const s.96(1); U K Supreme Court Order 1967 s.8(1).

6. SECURITY OF TENURE

387

former, permission to continue in office typically is granted by the Head of State on the advice of the Prime Minister for such period as is necessary for the purpose of facilitating the completion of duties.302 In Trinidad and Tobago the Constitution provides that a judge can con­ tinue in office after the retirement age for such period as is necessary to allow him or her to complete tasks started before retirement.303 The President must give permission for the extension and act on the advice of the Chief Justice.304 The latter advises the President on such extensions, even in relation to his or her own continuation after retirement.305 The Privy Council rejected the argument in Sookoo v AG306 that to allow a Chief Justice to recommend his or her own extension would be an infringement of natural justice and lent itself to abuse of power. Since the Chief Justice presided over the courts, Lord Scarman said he or she was a proper person to advise the President on continuation after retirement to complete judicial business. The Constitution was said to proceed on the basis of judicial integrity; if a question of judicial misconduct arose, then the Constitution made provision for removal of the Chief Justice from office for misbehaviour. In Sookoo, the Privy Council interpreted “continue in office” under s. 136(2) of the Trinidad and Tobago Constitution broadly to mean continuation in the office held immediately before retirement age, therefore a Chief Justice continues as Chief Justice. Just before he reached the age of retirement, the Trinidad and Tobago Chief Justice, Kelsick CJ, wrote the President seeking permission to continue in office until the end of the term to enable him to complete his duties and permission was granted. The question arose as to whether the Chief Justice could engage in his normal duties as Chief Justice or was restricted to finish­ ing uncompleted tasks. The Privy Council concluded that he was allowed to continue working as Chief Justice and participate in the ordinary business of the courts during his continuation in office to complete his or her duties. Their lordships however doubted whether the Constitution permitted addi­ tional extensions. Where Caribbean constitutions permit general extensions of office unrelated to the completion of judicial tasks, these are typically granted by the Head of State on the advice of the Prime Minister who must consult the Leader of the Opposition.307 The failure of the Prime Minister to consult the Leader of the Opposition will not necessarily invalidate extension or the actions of the judge during the extension. The Bahamas Constitution sets out in art.96 the retirement age for judges of the Supreme Court at 65 with the proviso that the Governor General “acting on the recommendation of the Prime Minister after consultation with the Leader of the Opposition” can allow a judge who has reached 65 to continue to up to 67 as has “been agreed between them”.308

3u2 Bah Const art.96(2); Bds Const s.84(2); Bze Const s.98(2); Ber Const 74(1); Cl Const s.96(l); Jam Const s.100(2); TT Const s. 136(2). 303 TT Const s. 136(2). 304 Above. 305 Sookoo v 4 G (1985) 33 W.I.R. 338 (PC TT). 306 Sookoo, above. 307 See e.g. Bah Const art.96(l); Bds Const s.84(lA); Bze Const s.98(1); Ber Const s.74(l); Cl Const s.96(1); U K Supreme Court Order 1967 s.8(1). 308 Bah Const art.96.

388

JIJDlt'lAI

IN D hin NDLNC h

In Whitfield v AGm the Prime Minister recommended the extension of the office of the Chief Justice but failed to consult the Leader of the Opposition at the designated time. At first instance, Gonsalves-Sabola J held the failure to consult did not invalidate the extension of office. His decision was influenced by circumstances of the decision-making in this case: the omission to consult was inadvertent, holding the extension to be invalid would have brought the Chief Justice’s career to an end, and, although not properly consulted, the Leader of the Opposition supported the extension. Gonsalves-Sabola J said the question of whether there is a violation of the supreme law should sometimes be looked at “macroscopically instead of microscopically”.310 This meant that the “true pith and substance of the proviso to art.96(l) must be given primacy over . .. procedural punctilios”.311 The Court of Appeal declined to decide the question of the effect of non-compliance with the requirement of consultation. Even if the extension of the office of Chief Justice after retirement was invalid because it contravened the provisions of the Constitution, they held that the decisions of a court on which the Chief Justice sat post-extension were effective in law by reason of the de facto doctrine. Post-retirement extensions have been severely criticised because of the prominence given in the independent states to heads of the government in determining whether these extensions are granted.313 That decision whether to allow an extension or not could be capricious and disadvantageous to judges who do not find favour with the political executive. Sir Fred Phillips notes that judicial valour might cost a judge an extension.313 Post-retirement extensions may invite unwittingly undue pressure by the executive on judges approaching retirement age. Judges interested in continuing post-retirement may be “constantly looking over their shoulders at those who command their uncertain judicial futures.”314 Increasing the retirement ages of superior court judges in view of longer life expectancies and the intellectual matu­ rity and professional competence that can come with advancing age,315 and ensuring pensions that allow judges “to live with dignity in retirement”,316 should obviate the need for a general extension of office. The Dumas Report recommended that the retirement age for judges should be 70 with no pos­ sibility of an extension.317 The Barbados Constitution Review Commission 3,,y Whitfield v , IG (1989) 44 W.I.R. 1 (SC Bah). 310 Whitfiidd, above, at 21. 311 Whitfield, above. 3i: Hugh Rawlins, “Constitutional Reform in Barbados. Strengthening the Judiciary” (2001) 6 Carib I B 18. 313 Sir Fred Phillips, Commonwealth Caribbean Constitutional Law (Cavendish Publishing. 2002). p.298. 314 Committee, “Recommendations of a Committee established by President Jagdeo Concerning Improving the State of the Justice System in Guyana" (Guyana, June 2000), at 3. 315 Flugh Rawlins, “Constitutional Reform in Barbados: Strengthening the Judiciary” (2001) 6 Carib LB 18, 22; Political Reform Commission, "Final Report ol the Political Reform Commission, Belize” (Belize. January 2000), rec.57; Constitution Review Commission. “Report of the Constitution Review Commission, Barbados" (Barbados Printing Service. 1998). paras.11.16, 11.17. 3lft Committee, "Recommendations of a Committee established by President Jagdeo Concerning Improving the State of the Justice System in Guyana” (Guyana. June 2000), at 4. 317 Reginald Dumas, “ Report of the Task Force to examine the structure and function of the Judicial and Legal Services Commission in the OF.CS” (St. Lucia. February 9. 2000) (Dumas Report) at 89.

6. SECURITY OF TENURE

3 89

recommended that the retirement age should be set at 72 for judges.318 The Political Reform Commission of Belize suggested an increase from 62 to 75 years old for Belize judges; a more modest increase to age 65 was effected.319 The work of judges could be organised so as to ensure that they can complete their judicial tasks before their retirement date320 or a brief “holding-over” period permitted. (c) Discipline and removal of superior court judges Superior court judges can only be removed for cause and the procedure out­ lined in the constitutions, the UK Supreme Court Order 1967 and the CCJ Treaty for their removal must be strictly followed. The standard for removal is high because a successful impeachment of a superior court judge requires in the main an investigation by a tribunal made up of persons who hold or have held high judicial office and a decision to remove made both by that tribunal and the Privy Council. The requirement of cause and the onerous procedure concretise the security of tenure of these judges and is the lynchpin of their independence--though arduousness of the procedure has not stood in the way of its recent use. In less than a year, between 2009 and 2010, the Privy Council recommended the removal of the Chief Justice of Gibraltar and a judge of the Grand Court in the Cayman Islands.321 The loss of confidence of the legal profession in a superior court judge in practice is one of the most decisive elements leading to removal.322

8-047

(i) General discipline a “delicate task” The strong constitutional protection of the security of tenure of superior court judges makes, as the Mackay Report on the administration of justice in Trinidad and Tobago put it, “any lesser discipline” than removal from office “a delicate task”.323 Superior court judges can only be removed from office for cause and, in general, judges can be suspended after the removal process has been initiated.324 Beyond that, the constitutions typically do not address their discipline and this limited and clearly defined context for disciplining judges is designed to give superior court judges strong security of tenure. In some overseas territories we see exceptions to this rule, and general discipli­ nary powers are vested in the specialised judicial service commissions and

318 Constitution Review Commission, "Report of the Constitution Review Commission, Barbados” (Barbados Printing Service, 1998), para. 11.16. 319 Bze Const s.98(l). 320 Constitution Review Commission, “Report of the Constitution Review Commission, Barbados” (Barbados Printing Service, 1998), para. 11.19. 321 Re Chief Justice o f Gibraltar [2009] UKPC 43, [2010] 2 L.R.C. 450 (PC Gib); Re Levers J [2010] UKPC 24, (2010) 79 W.I.R. 234, [2010] 5 L.R.C. 827 (PC Cl) at [50]. 322 See Meerabux v AG [2005] UKPC 12, (2005) 66 W.I.R. 113, [2005] 2 A.C. 513 (PC Bze); Re Chief Justice of Gibraltar, above; Re Levers, above. 323 Mackay Commission, “Report of the Commission appointed to enquire into and report and make recommendations on the Machinery for the Administration of Justice in the Republic of Trinidad and Tobago” (Trinidad and Tobago, October 2000) (Mackay Report), at 39 (abbre­ viated version of report, on file with authors). 324 See Bah Const art.96(7).

8-048

JU niCIA I

INDHHHNDI NCI

the Chief Justice; in addition, unprecedented reserve power is given to the Governor to decide on questions of general discipline.325 In Rees v Crane,™ Lord Slynn described the provision in the Trinidad and Tobago Constitution 1976 dealing with removal of superior court judges from office, s. 137, as providing ‘‘an exclusive procedure” for suspension and termination. Where a tribunal has been set up by the President in accordance with the Constitution to investigate the removal of a judge, s. 137(4) ol the Trinidad and Tobago Constitution provides that the President, acting on the advice of the Prime Minister in the case of the Chief Justice’s removal or the Chief Justice in the case of other judges’ removal, may suspend the judge from performing the functions of his or her office. Lord Slynn said that “if judicial independence is to mean anything, a judge cannot be suspended nor can his appointment be terminated by others or in other ways.”327 It is therefore not open to the Chief Justice or the specialised service commis­ sion to suspend indefinitely a judge who has engaged in impropriety or mis­ conduct from his or her duties, even if the judicial officer receives full pay.328 The options for disciplining superior court judges in most of the Anglophone Caribbean are either very severe—removing the judge from office or quite tenuous as a Chief Justice carefully manoeuvres to ensure his or her actions amount to no more than making “administrative arrange­ ments” as head of the judiciary. A Chief Justice is entitled as head of the judiciary to make administrative arrangements, including the allocation of judges to respective courts and administrative tasks, for the due administra­ tion of justice.329 The Chief Justice also has a responsibility to protect the reputation of the judicial arm.330 In his or her administrative role, Lord Slynn acknowledged that the Chief Justice could also require a judge not to sit because of that judge’s backlog of judgments to write, illness, accident, family or public obligations or allegations against the judge.331 A Chief Justice who made these decisions after frank and open discussion or agree­ ment with the judge in question could resist the claim that his or her actions amounted to discipline not contemplated by the constitutions.332 Ensuring that the period in which the judge does not sit is temporary, or re-arranging the judge’s work programme so that the judge is engaged in other judicial 323 In the Cayman Islands, the Governor has the power to discipline superior court judges on the advice of the specialised judicial service commission, whose advice he or she can reject if it “prejudices her Majesty's service" (Cl Const s. 106(1)). The Turks and Caicos Islands Constitution gives the Governor, acting on the advice of the judicial service commission, power to exercise disciplinary control over the Chief Justice and President of the Court of Appeal (TCI Const s.87(l)(b)) while the Chief justice and President of the Court of Appeal are expected to exercise disciplinary control over the judges in their courts (above, s.87(3)). The Governor can refuse to act on the advice of the service commission if so instructed by a UK Secretary of State (above, s,87(l)). 3:6 Rees v Crane(1994) 43 W.I.R. 444; [1994] 2 A.C. 173 (PC TT). 327 Rees v Crane (1994) 43 W.I.R. 444 at 453; [1994] 2 A.C. 173 (PC TT) at 187. 328 Rees, above. 329 Rees v Crane (1994) 43 W.I.R. 444 at 452; (1994) 2 A.C. 173(PC TT) at 187. 33n See Duritv v A G [2002] UKPC 20; [2003] 1 A.C. 405 (PC TT). 331 Rees v Crane (1994) 43 W.I.R. 444 at 452; (1994) 2 A.C. 173 (PC TT) at 187. 332 Rees, above.

6. SECURITY OF TENURE

391

work would also help the Chief Justice steer clear of instituting an unconsti­ tutional suspension.333 If judges are admonished or reproached by Chief Justice as part of discipli­ nary procedures, the Latimer House Guidelines recommends that this should be done in private and not publicly.334 The Mackay Report doubted that there was any constitutional power to issue a public reprimand in Trinidad and Tobago.335 Given the “delicacy” of discipline, the 2000 Mackay Report said that the permitted options were a private reproach or institution of removal proceedings.336 The Mackay Report did not suggest constitutional reform because it thought that public censure could damage the authority of a judge, though it accepted such damage was less likely if the admonition was not in relation to conduct in the exercise of the judge’s judicial func­ tions.337 There is also a need for judicial accountability and to instil public confidence in the judiciary and the very Latimer House Guidelines recognise that legitimate public criticism is a way of ensuring judicial accountability.338 The UN Special Rapporteur on the Independence of Judges and Lawyers has recommended that to enhance transparency, decisions related to disciplinary measures should be made public.339 The position of the Mackay Report on public admonitions does not give appropriate weight to the need for judicial accountability though it does draw attention to the constitutional difficul­ ties with lesser forms of discipline for superior court judges. In the absence of explicit constitutional authorisation, arguably a judicial code of conduct agreed to by the judiciary could contemplate public admonition of a judge and make clear the contexts in which a public reproach may be warranted and the body—likely the service commission or the chair on its behalf—that is allowed to do so.

333 Rees, above. 334 Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence (adopted on June 19, 1988 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association), principle VI. 1.a.iii. In 2011, the President of the CCJ publicly admonished a judge for “inappropriate and improper” extrajudicial comments about political and constitutional issues in Trinidad and Tobago, the host country for the CCJ but not one over which it has appel­ late jurisdiction. See Nazma Muller, “CCJ judge chastised for comments” (Triniclad Express, February 5, 2011), available at http:/lwww. trinidadexpress.com/news/CCJJudgejcluistisedJor_ comments-115395504.html [Accessed February 25,2015]. 335 Mackay Commission, “Report of the Commission appointed to enquire into and report and make recommendations on the Machinery for the Administration of Justice in the Republic of Trinidad and Tobago” (Trinidad and Tobago, October 2000), at 40. 336 Mackay Report, above. 337 Mackay Report, above. 338 Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence (adopted on June 19, 1988 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association), principle VI. 1.b.i. 339 UNHRC “Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy” (2009) UN Doc A/HR C/11/41, para.63.

w*r ^r-»}

392

JUDICIAL INDEPENDENCE

(ii) Removal mast be for cause 8-049

Superior court judges can only be removed from office for cause. This is an explicit requirement of the constitutions and implied requirement of the constitutional protection of judicial independence.340 Caribbean constitu­ tions identify two principal grounds for removal of judges from office: theii inability to discharge the functions of their office caused by infirmity of body, mind or otherwise and misbehaviour.341 A very high standard for removal is required in order to protect the rule of law and judicial independence.342 The test is whether “the confidence in the justice system of those appearing before the judge or the public in general would be undermined if the judge continued to sit”.343 The inquiry must review the overall conduct of the judicial officer.344 To protect judicial independence, errors of judgment in the performance of the judicial function should not be readily treated as “misconduct”.345 The proper avenue for dealing with judicial error is through appeals. (iii) Procedure for removal must be followed

8-050

The procedure outlined in the constitutions, the UK Supreme Court Order 1967 and the CCJ Treaty for removal of superior court judges establishes a high standard that must be strictly followed. Typically there are three stages in the process for superior court judges in national courts and the ECSC. First, the appropriate functionary requests that the question of removal be investigated. Second, an investigation is undertaken by a specially established tribunal. Third, if the tribunal recommends removal, the matter is referred to the Privy Council for a final determination on whether to remove. In most of the region, the removal process forjudges begins with the Chief Justice or President of the Court of Appeal in relation to judges in his or her court or. in some cases, the specialised service commission346 who must represent to the Head of State that the question of removing a judge should be investigated.347 In the ECSC, the judicial and legal service commission starts the process by representing to the Chief Justice that removal of a judge

340 Re Chief Justice of Gibraltar [2009] UKPC 43; [2010] 2 L.R.C. 450 (PC Gib) at [266], See UN Basic Principles on Independence of the Judiciary 1985 art. 18. 341 Bah Const art.96(4); Bds Const s.84(3); Bze Const s.98(4); Ber Const 74(2); Cl Const s.92(2); Guy Const art. 197(3); Jam Const s. 100; TT Const s. 137(1); TCI Const s.85(5); UK Supreme Court Order 1967 s.8(4). 342 Re Chief Justice of Gibraltar [2009] UKPC 43; [2010] 2 L.R.C. 450 (PC Gib) at [266], 343 Re Levers J [2010] UKPC 24; (2010) 79 W.I.R. 234; [2010] 5 L.R.C. 827 (PC Cl) at [50], 344 Re Chief Justice of Gibraltar [2009] UKPC 43; [2010] 2 L.R.C. 450 (PC Gib), at [228], [264], 345 Durity v AG [2002] UKPC 20; [2003] 1 A.C. 405 (PC TT) at [24], Although this case involved the disciplining of a magistrate, not superior court judges, the principle of judicial independence articulated in this case is one of general application. 346 TT Const s. 137. 347 See Bah Const art.96(5); Bds Const 84(5); Bze Const s.98(4); Guy Const art. 197(5); Jam Const s. 100(6).

6. SECURITY OF TENURE

393

should be investigated.348 As it relates to the Chief Justice or President of the Court of Appeal, the first step in soliciting an investigation is taken by the Prime Minister. In the OECS, one of the six Prime Ministers can start the process by asking the UK Lord Chancellor to investigate who must then set up a tribunal made up of at least three persons.349 In the overseas territories that are not part of the ECSC, the Governor must form the view that the question of removal ought to be investigated and either set up an investigat­ ing tribunal350 or refer the question to the judicial and legal services commis­ sion for investigation.351 In the Cayman Islands, the Governor first refers the question of removing a judge for cause to the judicial and legal services commission for investigation; if the commission recommends removal, the matter should be referred to the Privy Council.352 At the second stage, the relevant functionary—the President, Governor General, Governor or Lord Chancellor—appoints a tribunal that investi­ gates the matter. For the most part this is a tribunal of peers consisting of a chair and not less than two other members who hold or have held high judi­ cial office.353 The tribunal is an executive body. A few functionaries determine the composition of the tribunal in their own discretion, such as the Chief Justice of the ECSC in relation to other judges and the Guyana President in relation to the removal of the Chancellor or Chief Justice.354 But for the most part they appoint on the advice of others. The person who recommends the investigation into removal usually provides advice as to the composition of the tribunal. For example, in the Bahamas the Prime Minister advises the Governor General on the need to investigate the removal of the Chief Justice or President of the Court of Appeal from office and also provides advice on who should be appointed to the investigating tribunal.355 In relation to all other superior court judges, the Chief Justice or President of the Court of Appeal both recommends the investigation and the membership of the investigatory tribunal.356 Though in Trinidad and Tobago the judicial and legal service commission recommends investigation of a judge, and it is the Prime Minister who advises on who should sit on the tribunal after consult­ ing the service commission.357 Only if the tribunal recommends removal does the matter move to the next stage, a referral to the Privy Council. If the Privy Council advises that the judge be removed the relevant functionary must act accordingly. In Guyana, there is no third stage. The investigating tribunal is the final arbiter of whether to remove the judge or not.358 Likewise in Belize, unlike 348 U K Supreme Court Order 1967 s.8(4). 349Above, s.8(5). After reforms in 2005, the Lord Chancellor is no longer theHead of the Judiciary and has no responsibility for appointment of judges. It is not yet clearwho in reality will perform this function after the reforms, possibly the new office of the Lord Chief Justice or the newly-established judicial appointments committee. 3iu Ber Const ss.74(4), 78(4); TCI Const s.85(6). 351Cl Const ss.96(3), (4), 101(3), (4). 352Cl Const ss.96(3), (4), 101(3). (4). 353 See Bah Const art.96(6)(a); Bds Const s.84(5)(a); Jam Const s.l00(6)(a). 354 UK Supreme Court Order 1967 s.8(5); Guy Const art. 197(5). 355 Bah Const arts.96(6), 102(6). 356 Above. 357 TT Const s. 137(3). 358 Guy Const art. 197(5).

8 051

394

J U D K I A I . 1 ND1 l ’ l N D L N f L

most other Anglophone Caribbean states and territories, the Privy Council is not the final arbiter on the removal of a judge. The Belize Constitution provides that a superior court judge can be removed from office by the Governor General for inability to perform the functions of his or her office or for misbehaviour if the judicial and legal services commission recom­ mends to the Belize Advisory Council that the question of the removal of that judge from office ought to be investigated.359 The Belize Advisory Council must advise the Governor General that that judge ought to be removed from office for inability to perform his or her functions or for misbehaviour. The power given to Prime Ministers and the Guyana President to initiate the process for the removal of the most senior judicial officers and select the investigating bodies has been severely criticised. The 1987 Constitutional Commission of Trinidad and Tobago could find no good reason to involve the Prime Minister in the selection of a tribunal to investigate the impeachment of a CJ or judge.360 The Commission said it was “wrong in principle as it is inconsistent with the doctrine of the separa­ tion of powers”.361 Anthony Gubbay, Chief Justice of Zimbabwe warned that it gives a Prime Minister the power to harass and effectively suspend the Chief Justice by appointing an investigating tribunal where there has been no real misconduct or the alleged misconduct is insignificant.362 The Barbados Constitution Review Commission recommended a slightly more modest role for the Prime Minister. The advice to investigate removal would be tendered to the Head of State by the judicial and legal service after consultation with the Prime Minister and Chief Justice.363 Where the Chief Justice is being impeached, the advice would be tendered by the service commission after consultation with the Prime Minister and Leader of the Opposition. To remove the judges of the CCJ the regional judicial and legal services commission must decide that the question of removing the judge should be investigated and then refer the matter to a tribunal made of at least three persons who have held senior judicial office.364 The commission can undertake such consultations as it considers to be expedient in determining who to appoint.365 If the tribunal advises the commission that the judge ought to be removed for cause a majority of the members of the commis­ sion must decide to remove the judge.366 To remove the President of the CCJ, three heads of government must jointly represent to the other heads 359 Bze Const ss.98(4), 102(3). ih,) Constitutional Commission, “Report of the Constitutional Commission of the Republic of Trinidad and Tobago” (Trinidad and Tobago, June 1, 1990). para.261. 31,1 Above. 162 The Hon Chief Justice A.R. Gubbay. ‘T h e Independence of the Judiciary with Special Reference to Parliamentary Control of Tenure. Terms and Conditions of Service and Remuneration of Judges: Judicial Autonomy and Budgetary Control and Administration' in John Hatchard and Peter Slinn (eds), Parliamentary Supremacy and Judicial Independence, I Commonwealth Approach (Cavendish Publishing. 1999), pp.47, 49. w Constitution Review Commission. “Report of the Constitution Review Commission" (Barbados Printing Service, 1998). para.11.27. 364 Agreement Establishing the Caribbean Court of Justice art.LX.5. 363 Above. M' Above.

6. s e c u r i t y

o f te n u r e

395

that the question of removing the President should be investigated.367 The heads must then refer the matter to a tribunal that they appoint made up of at least three persons who hold or have held senior judicial office. If the tribunal advises the regional judicial and legal services commission that the President ought to be removed for cause, then the service commis­ sion must consider whether to recommend removal. A qualified majority vote of three-quarters of the contracting states is needed to remove the President.368 (iv) Procedural fairness applies to the removal process A judge at risk of removal is entitled to procedural fairness. The Cayman Islands Constitution makes it explicit that: “Any suspension, removal or disciplinary action taken [against a superior court judge or magistrate] shall be carried out in accordance with the highest appropriate standards of procedural fairness”.369 The Latimer House Guidelines state that in cases where a judge is at risk of removal, he or she has the right to be fully informed of the charges, to be represented at a hearing, to make a full defence, and to be judged by an independent and impartial tribunal.370 A Chief Justice, President of a Court of Appeal or head of a court has a duty to act fairly in his or her dealings with members of his or her court and give them a reasonable opportunity to respond to concerns he or she has about their performance or conduct.371 Likewise, a judicial service commission with the power to make represen­ tations that there should be an investigation as whether a superior court judge should be removed for cause, should provide judicial officers with an opportunity to be heard before making such representations.372 On two occasions when the judicial service commission had concerns about Barnwell J’s conduct they invited him to respond to the allegations, and both times the commission took no further action. When the commission did make representations that he be investigated it failed to give him an opportunity to respond. The Guyana Court of Appeal held that the judicial service commis­ sion violated his constitutional right to a fair hearing and the commission’s duty to act fairly when it made its representation to the President without giving Barnwell J an opportunity to be heard.373 The Privy Council decision in Rees v Cranem followed a few months after 367 Above. 168 Above, art.IV.6. 369 Cl Const s. 106(9). 370 Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence (adopted on June 19, 1988 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association). 371 Re Levers [2010] UKPC 24 ; (2010) 79 W.I.R. 234 ; [2010] 5 L.R.C. 827 (PC Cl). 372 Barnwell v AG (1993) 49 W.I.R. 88, [1994] 3 L.R.C. 30 (CA Guy); Rees v Crane (1994) 43 W.I.R. 444, [1994] 2 A.C. 173 (PC TT). 373 Barnwell, above. 374 Rees v Crane (1994) 43 W.I.R. 444; [1994] 2 A.C. 173 (PC TT).

8-052

n

mi

i \i

i m

>i

im m u

n

< t

the Ciu y a n a ease. 1 he C'hiel Justice to o k ( tu ne J, a sen ior pu isn e ju d g e . fr om the r o s ie r o f j u d g e s sitting the foll owi ng t e r m aft er receiving c o m p l a i n t s a b o u t him. T h i s decision w a s later a d o p t e d by the ju di ci al a n d legal services c o m m i s s i o n . C r a n e J w as n o t i n f o r m e d o f th e c o m p l a i n t s o r told th a t the service c o m m i s s i o n w a s m e e ti n g to c o n s i d e r c o m p l a i n t s a g a i n s t h im a n d to d e t e r m i n e w h a t ac t io n to ta ke, l i e la te r received a letter f r o m the service c o m m i s s i o n i n f o r m i n g h im o f c o m p l a i n t s a b o u t his p e r f o r m a n c e in c o u r t a n d d o u b t s a b o u t his state o f he al th a n d w as ad v i se d th a t lie w a s s u s p e n d e d from his ju d ic ia l dut ie s until f u r t h e r notice. I he service c o m m i s s i o n held a n o t h e r m e e ti n g in r e la tio n to C r a n e J w i t h o u t giving him notice a t w hic h the ( ’h ie f J us ti ce p r e s e n t e d a r e p o r t o n C a r n e J's p e r f o r m a n c e in c o u r t . In th a t m e et in g t h e service c o m m i s s i o n d ec id ed to ad vi se the P resident to inv estigate the q u e s ti o n o f th e r e m o v a l o f C r a n e J a n d a t r i b u n a l was a p p o i n t e d . T h e Privy C o u n c i l ruled t h a t C r a n e J was n o t tr ea te d fairly, l ie h a d a right to lhe p r o t e c t i o n o f th e law u n d e r the C o n s t i t u t i o n w hic h inclu ded respect for the principles o f n a t u r a l justice, t he c o m m i s s i o n was u n d e r a d u t y to act fairly in d e t e r m i n i n g w h e t h e r t o initiate the p ro ces s for r e m o v a l by r e p r e s e n t ­ ing t o the P r es id en t o f t h e c o u n t r y t h a t the re w a s a need for a n inv es ti ga ti o n, liven t h o u g h th e judge w o u l d h a v e an o p p o r t u n i t y to be h e a r d if a n in ve st ig a­ tion was initiated, lie was entitled to be told o f the al le ga ti on s m a d e to the service c o m m i s s i o n a n d to r e s p o n d to th e m , even t h o u g h this did no t ne ce s ­ sarily h av e to be an oral he ari n g. T h i s c o n s t i t u t e d a b r e a c h ol n a t u r a l ju st ic e a n d the right to the p r o t e c t i o n o f the law. In lie Levers J , ' /5 the Privy C o u n c i l rejected cl ai ms th a t the initial p roc es s le ad in g to a referral for a n inv es ti gat ion i n t o th e re m o v a l o f a j u d g e invol ved b r ea c h es o f n a t u r a l justice. A G r a n d ( o u r t jud ge was r e m o v e d fr o m office in the C a y m a n Islands fo ll ow in g al le ga t io n s t h a t w er e m a d e by litigants a n d a c o u r t r e p o r t e r o f d i s c r i m i n a t o r y a d j u d i c a t o r y practices a n d the use o f in j u d i ­ cio us l a n g u a g e in c o u r t. O n M a y 24. 2007, the C h i e f Just ice w r o t e to Levers J with co p ie s o f th e t r o u b l i n g t r a n s c r i p t s o f c o u r t p r o c e e d in g s in w h ic h she was presiding, e xp r es s in g his c o n c e r n s a n d in d i c a ti n g t h a t he w i s h e d to discuss these with her. She r e s p o n d e d in waiting in J u n e 2007 d e n y i n g a n y i m p r o ­ priety on h e r p a r t a n d a s k e d for the c o r r e s p o n d e n c e t o be e x p u n g e d f r o m her p e r s o n n e l file. T h e C h i e f Just ice r e s p o n d e d the next d a y in d i ca ti n g that in his view the m a t t e r h a d n o t re a c h e d the stage o f r e q u ir i n g " f o r m a l t r e a t ­ m e n t ' ’ a n d t h a t he wis hed to p r e v e n t this by wr iti ng her on an "entirely confi de nti al a n d collegiate ba s is ” .■,/roviue that the saiaiies ol s u p e ­ rior co urt ju d g e s s h o u ld be c h ar g e d on a n d paid out o f the co ns o li d a te d

'*'* Regin.il1 I a w R e m a r k s ol the Ri ght H o n o u r a b l e Beverley M e l achl i n. PC C h i e f Justice o! < m. ki n" ( 00 4 "*3 Wi u l s o r Re v 1 cg.il A S o c i a l Issues ’ 11. PI r i c o n i c s I. Re p o r t ol Ihe Rt l i o n M • Justin. P I ( i c o r g c s o n Ilie I i n k p e n d c n c e ol the Judici al y I lie ^ i c o n i c s R e p o r i " ( "’O(IO) S C . t n b I P> hS. U. 1 ! 1 liIinier H o u s e ( i u i d c l i n e s lor di e C o u u n o n w e n h l i o n Parl i ai n e n l ar y S u p r e ma cy and Indicia! I n d e p e n d e n c e ( a d o p t e d o n J u n e 19. 19NN al a me e t i n g o f (he re pr ese nt at i ves of the c o i n m o i n v e a h h Pa r l i ame n t a r y A s s o c i a t i o n , di e C o m m o n w e a l t h M a g i s t r a t e s and J udg e s Vssoei al i on. lire ( o m n i o m v e a l t h 1 avvyers" A s s o c i a t i o n and 1lie C o r u m o n w c a l l h l. cga! E d u c a t i o n A s s o c i a t i o n ) . princi ple VI. S e e a l s o /)// See Guy Const arts. 149G. 149J. See Thomas v AG GY 2009 HC 7 (CARILAW) April 30 2009 (HC Guy). m/ Guy Const a rt.139(1) provides that “[njo person shall be deprived of his personal libcriy save as may be authorised by law in any of the following cases . . . "

3. CARIBBEAN BILLS OF RIGHTS

429

social and economic rights as well as the duties of citizens. They are termed the “Principles and Bases of the Political, Economic and Social System”.108 These rights are not directly enforceable in the courts unless Parliament so provides.109 Nevertheless, Parliament, the government, the courts and public agencies must be guided in the discharge of their functions by these princi­ ples.110 Included in Ch.II is the right to leisure, the right to free medical care, the duty to improve the environment, the right to housing, the duty to defend the state, the best interests of the child principle and a child’s right to main­ tenance.111 There is an overlap in some social and economic rights protected in Title 1 and Ch. II. The Ch.II unenforceable version of the right is usually more expansive than the more readily enforceable Title 1 iteration of the right. For example, Ch.II provides for a right to free education from nursery to university, while Title 1 states that children are entitled to free primary and secondary education.112 Title 1A contains a third tier of rights that arise by virtue of the direct incorporation of seven key international human rights treaties into the Constitution.113 According to the Constitution, persons in Guyana are enti­ tled to the human rights enshrined in these international treaties.114 This entitlement is so qualified that it is substantially hollowed out. First, persons in Guyana have the benefit of these treaty rights only if these rights are not covered by Title 1 because the latter are excluded from the purview of Title 1A.115 The directly incorporated treaty rights are most likely to be social and economic ones that fall outside Title 1. The executive, legislature, judici­ ary and all organs and agencies of Government are required to respect and uphold Title 1A rights and the State must take reasonable measures within its available resources, having regard to its socio-cultural level of develop­ ment, to achieve the progressive realisation of these rights.116 The promise of this ground breaking incorporation of multiple international treaties into a Caribbean constitution is further undercut by the absence of a mechanism to effectively enforce Title 1A rights. Redress for these rights must be sought through the new Human Rights Commission.117 Its tasks include monitoring the state’s compliance with its international human rights obligations, under­ taking public education on human rights, providing technical advice and recommendations to state bodies on complying with international human rights commitments and undertaking appropriate research to facilitate its 11,8 Above, arts 9-39. 109 Above, art.39(l). Ilu Above. 111 Above, arts.23, 24,25, 26, 33, 38B and 38D. 1,2 Above, arts.27, 149H. 113 Convention on the Rights of the Child 1989; Convention on the Elimination of All Forms of Discrimination Against Women 1979; Convention on the Elimination of All Forms of Racial Discrimination 1965; Convention against Torture and Other Inhuman or Degrading Treatment or Punishment 1984; Covenant on Economic, Social and Cultural Rights 1966; Covenant on Civil and Political Rights 1966; Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women 1994. 1.4 Guy Const art. 154A. 1.5 See Arif Bulkan, “Democracy in Disguise: Assessing the Reforms to the Fundamental Rights Provisions in Guyana’’ (2004) 32 Ga J Int’l & Comp L 613, 625 -28. 116 Guy Const art.l54A (l), (3). 1,7 Above, art. 154A(2), (4).

mi

I I

N ! )A M I

I AI

H K , 11 I S

\ N i i I HI

I I « > VI

i'eeommoiKlalioii.s.li,s I lie Commission does nol. have the power lo seeuie Hfeetive relief in individual cases. Instead it can institute local proceedinits on behalf of a person whose rights are infringed.'”’ This power is useless in relation to litlc IA rights because the Constitution fails to provide judicial icmedies for breaches of these lights.1 " I lie innovations in Cli 2 and I ilie I \ of the Guyana Constitution are yet to make a substantial impact. Guyana's complex layered and detailed rights regime has many elements worthy of commendation and emulation 1his includes the expansion of equality rights, recognition ol social and economic rights, protection of indigenous peoples, and its openness lo have regard to international law. Nevertheless, as an overall scheme, the region's most expansive conslitntionalisation of human rights is not necessarily the most efficacious.!:! A large number of rights in a constitution and “a broad array of novel rights” do not necessarily correlate with stronger human rights protec­ tion. 1,1 The opposite may be true according lo Law and Verslceg who say the evidence is that "ovcrambition ’ in guaranteeing rights is often "a recipe for failure” 12’ and that countries with more rights tend to have "higher levels of political violence and terror” 14 One explanation lor this is that some countries adopt a wide guarantee of rights to seek acceptance internationally.1”' t ii i Jamaica

9 013

After a prolonged twenty-year period of constitutional reform that started in I992.l(’ Jamaica in 2011 replaced the conventional bill of rights found hi Ch.3 of the independence Constitution with a “Charter ol 1 midamental Rights and Freedoms".127 Compared with its predecessor, it is some six sec­ tions shorter, guarantees more rights and expresses these rights in more posi­ tive and very general terms, t he goal was lo move closer to the format ol the bill of rights in i rinidad and Tobago.12i! One oversized subsection, s. 13(3). is the cornerstone of the guaranteed rights and it contains 19 p r o v i s i o n s securing rights in very general terms. Only the rights to liberty, properly, due process and freedom of religion arc addressed in very detailed stand-alone l|f! Above, ail 2 120(1). I!" Abo\e. nrts.N?.0(l)(j). 2I?U . t i | 4 4 | j G| per Lord Ro d g er : Watson r R | 2 0 0 4 | U K P C 44. (2 0 0 4 ) (.4 W . I . R . 241 12005} I \ . C . 472 ( P C l a m) at 142],

™ 1)1'I' v Mollis,>11 12004) U K l ’C Ck ( 2 0 0 4 ) (A W . I . R . 140: poo.ij I I d 13-d- [lh] r 171. 1's S e e a h o v e p aras Ci 0 1 5

0 017.

A C

41 I (PC

lam)

il

4. LIMITATIONS ON THE RIGHTS

437

with a “reasonably required” limitation clause. They represent a marked retreat from the seminal 1975 Privy Council decision A G v Antigua Times}19 This case exemplifies the early restrictive approach of the Privy Council in which it was excessively deferential to the government in determining the constitutionality of state action.180 The Antigua Times case was heard in the early 1970s, the first decade of adjudication under modem Anglophone Caribbean constitutions. By 1975 the larger Caribbean countries and Grenada had achieved independence. The Leeward Islands, including Antigua and Barbuda from which the case arose, were still Associated States.181 As new political parties emerged and politi­ cally aligned media developed in the Leeward Islands, there was repression of newspapers and other media outlets, many of which were politically affili­ ated.182 Between 1970 and 1976 the Progressive Labour Movement assumed power. Its policies brought it in conflict with unions and it was also accused of victimising its rivals.183In 1971 the Newspaper Registration (Amendment) Act was enacted. Newspapers now had to obtain a licence approved by Cabinet to operate and to pay an annual licence fee of $600. A second law, the Newspaper Surety Ordinance (Amendment) Act, required a deposit of $10,000 to satisfy judgments for libel. Antigua Times, a newspaper company owned by a political rival of the government, was effectively shut down by the introduction of the two pieces of legislation. In AGv Antigua Times, 184the question before the Privy Council was whether the registration fee was “reasonably required” for the public interest and whether the deposit was “reasonably required” for protecting the reputation of others. The starting point for the Privy Council was a presump­ tion that all Acts enacted by Parliament were reasonably required. This could be rebutted by showing that the laws were manifestly arbitrary. Since the law lords concluded the licence fee was pursuant to the legitimate power of the legislature to tax in the interests of defence, public safety, public order etc., the fee fell squarely within the limitation on the right to freedom of expres­ sion. The Privy Council also held that the presumption that the $10,000 deposit was reasonably required to protect the reputations of others had not been rebutted. The presumption of constitutionality as applied by the Privy

179 AG v Antigua Timex (1975) 21 W.I.R. 560; [1975] 3 All E.R. 81 (PC A&B). Margaret Demericux, “The Delineation of the Right to Freedom of Expression” [1980] P.L. 359. 180 See generally, K.D. Ewing “A Bill of Rights: Lessons from the Privy Council” in W. Finnie, C.M.G. Himsworth and N. Walker (eds), Edinburgh Essays in Public Law (Edinburgh University Press, 1991). 181 See above para. 1-035. 182 John Lent, “Mass Media in the Leeward Islands” in Stuart H. Surlin and Walter C. Soderlund (eds), Mass Media and the Caribbean (Gordon and Breach Science Publ, 1990), p .108. See also Leara Rhodes and Paget Henry, “State and Media in the English-Speaking Caribbean: The Case of Antigua” (1995) 72 Journalism and Mass Communications Quarterly 654; Dorcas White, The Press and the Law in the Caribbean (Cedar Press, 1977); Dorcas White, “Legal Constraints and the Role of the Mass Media in a Caribbean in Transition” (1976) 22(4) Caribbean Quarterly 26. 183 Paget Henry, “Political Accumulation and Authoritarianism in the Caribbean: The Case of Antigua” (1991) 40 SES 1, 26-27. 184 AG v Antigua Times (1975) 21 W.I.R. 560, [1976] A.C. 16 (PC A&B); M argaret Demerieux, “The Delineation of the Right to Freedom of Expression” [1980] P.L. 359.

4 18

9 020

i l 1M

)AVII

N T .M

K T f;111S AN11

I R l

l D O M S

Council cITcctivcly transferred from the courts to the legislature and executive the determination of the scope and meaning of the fundamental rights. It took a decade and a half for the Privy Council lo abandon its excessive judicial deference and begin to stress the need tor the courts to maintain "a linn performance of their proper constitutional role" in assessing limits on fundamental rights.,8f’ This dramatic shift in the 1990s was explained with reference to the importance of the right to freedom of expression in a democ­ racy. l hc Privy Council has observed that this right '“would be a fragile thing if it could be overridden by general political or economic policy."18' The 1990 case from Antigua and Barbuda of 1lector v /l(7188 marked the beginning of a new judicial approach to limitations on rights. The left leaning Antigua Caribbean Liberation Movement and its publication, the Outlet, with Tim Hector as its editor, had become a chief critic of the gov­ ernment in Antigua and Barbuda. In 1985 the Outlet was charged with the olfence of printing a false statement likely to undermine public confidence in the conduct of public affairs, in violation of the Public Order Act 197? In Hector, Lord Bridge of Harwich began his analysis of the legislation with a statement on the importance of freedom of expression to democracy, affirm­ ing that those who hold office in government must be open to criticism about the conduct of public affairs. The Privy Council concluded that criminalising a statement that was likely to undermine public confidence in the conduct of public affairs was not reasonably required to secure public order. It would impair press freedom and public criticism of the government, furthermore, other provisions in the legislation adequately addressed the risk that a false statement might disturb public order, l hat provision was declared to be unconstitutional. At about the same time the Privy Council decided the Hector case, Llloy de Freitas, an extension officer in the Ministry of Agriculture, f isheries, I ands and Housing in Antigua and Barbuda participated in a peaceful demonstra­ tion at the headquarters of the Ministry, in which protesters carried placards critical of the Minister, against whom allegations of corruption had been made. In de Freitas v Permanent Secretary.^ the Privy Council declared as unconstitutional the section in the Civil Service Act 1984 that prohibited a civil servant from expressing any opinion in a public place on matters of national or international political controversy. The law infringed the right of civil servants to freedom of expression. The Privy Council held that it could not be justified on the ground that it was reasonably required for the proper performance by public officers of their functions because it did not strike an appropriate balance between the duty of civil servants to properly fulfil their functions and their freedom of expression. The blanket restriction was an excessive or arbitrary interference with the right to freedom ol expression of public servants. Is:> Margaret Demerieux. "Setting the I imits ol fundam ental Rights and I reedoms in the Commonwealth Caribbean" (1987) 7 Legal Studies 39, 46. Is'’ See (.’a ble dt Wireless (D om inica) I.id r Margin (2000) 57 W.I.R. 141 at 151: [7001] I L.R.C’. 632 (PC Dom) at 641. See also Beniamin r M inister of Information and Broadcasting [2001] UKPC 8; (2001) 58 W.l R. 17 I: [2001] 4 I .R.C. 272 (PC Ang) at [49] [53J. IS/ O ib lcd Wireless ( Dominiia) Ltd, above. ISK Hector r A il (1990) 37 W.I.R. 216; [1990] 2 A.C. 312 (PC A&B). ISI) de Freitas v Permanent Secretary (1998) 53 W.I.R. 131; [1999] 1 A.C. 69 (PC A&B).

4. LIMITATIONS ON THE RIGHTS

439

In Cable and Wireless (Dominica) Ltd in 2000, the Privy Council affirmed that there were two distinct exercises in assessing a breach of freedom of expression: whether the right had been infringed and could the restriction on the right be justified. Cable and Wireless (Dominica) Ltd faced a challenge to its exclusive licence to provide telecommunications services in Dominica it enjoyed by virtue of legislation. A competitor argued that the licence violated its constitutional right to freedom of expression. The Privy Council found that the statutory monopoly on telecommunications invariably hindered a competitor’s freedom to communicate information. Having determined that the question of whether the monopoly could be justified in the public interest had not been adequately evaluated below, the Board remitted this question to the local court. In doing so, the Privy Council clarified that the primary burden of showing justification rested with those who supported the monop­ oly. If they succeeded, the burden shifted to applicant to establish the second limb of the limitation clause, that the law was nevertheless not reasonably justifiable in a democratic society.190 (c) Evaluating justifications for limits on rights in the public interest or to protect the rights and freedoms of others By the early 2000s, an approach to assessing limits on guaranteed rights in conventional Caribbean constitutions had evolved from the Eastern Caribbean Privy Council decisions dealing with freedom of expression. This included: i. First, a determination must be made as to whether there has been a prima facie breach of a fundamental right. The applicant bears the burden of proving this breach. ii. If this burden is met, the respondent must prove that the measures limiting the protected right were justified in the public interest or to protect the rights and freedoms of others. To determine that question, it must be established that a. the restriction on the right is pursuant to a “law” or meets the standard of legal certainty.191 b. there is a rational connection between the measures and a legiti­ mate public goal listed in the limitation clause. c. the measures limiting the right are proportionate. iii. Most conventional bills of rights admit a third stage if the respondent proves that the law is reasonably required for a legitimate goal. The applicant is allowed to prove that the law nevertheless was not reason­ ably justifiable in a democratic society.192

190 This approach to the burden of proof was affirmed by the Privy Council in assessing the constitutionality of criminal libel laws in Grenada. See Worme v COP [2004] UKPC 8; (2004) 63 W.I.R. 79; [2004] 2 A.C. 430 (PC Gren) at [41], 191 See above paras 6-013 --6-017. 192 Smith v COP (1984) 50 W.I.R. 1 (SC Bah) at 12.

9-021

140

l-UN D A M I-N I'M

R K i H l S A N D 1 RI'I I K ) M S

In Trinidad and Tobago where limits on the enumerated constitutional rights are implied, the emphasis is also on establishing that the restriction on the right pursues a legitimate aim and is proportionate to it.|y1 ( i) The burden o f proof 9-022

As already mentioned, the burden of proof rests on the applicants alleging breach of a fundamental right to prove a prima facie infringement of the right. Once it is established that the right has been infringed, the burden shifts to the state or those seeking to justify the law to show it can be justified for the purpose of protecting the public interest or the rights and freedoms of others.194 The state has access to the information giving rise to policy deci­ sions in the interests of the public and it makes good sense that it should bear the burden of establishing that a measure is justified.195 The court should not be expected to speculate about the considerations that give rise to jus­ tification.196 Some constitutions contemplate that a law may be “reason ably required” to protect the public interest and the rights and freedoms of others and yet not “reasonably justifiable” in a democratic society 197 Under these constitutions, if the state succeeds in proving the law is “reasonably required”, the burden shifts back to the applicant to show that the law is not “reasonably justifiable” in a democratic society.198 There is confusion about the relationship between the presumption of constitutionality and the burden of proof in bills of rights cases because a line of prominent cases, notably Antigua Times and Hinds, treats the presump­ tion of constitutionality as imposing a heavy burden of proof on applicants in fundamental rights adjudication to establish both a breach on the face of the law and that the law cannot be justified. As already shown in landmark cases from the Eastern Caribbean, the Privy Council abandoned this restric­ tive approach in the 1990s and established that the applicant in rights cases need only prove a prima facie breach of the guaranteed right at the outset of litigation. AGv Antigua Timesm and Hinds v otherwise landmark cases from the mid-1970s, epitomise the resistance by the Privy Council in the early years of 191 Snniit v 4(7 [2007] UKPC 55, (2007) 71 W.I.R. 39, [2008] 1 A.C. 655 (PC TT) at [58] cited with approval in Public Service Appeal Buurt! r Maraj [2010] UKPC 29. (2010) 78 W.I.R 461. [2011] 3 L.R.C. 616 (PC TT) at [31]; Weel r AG (2011) 78 W.I.R. 22 (CA Bds) al [27], 194 Cable and JVireless (Dominica) Ltd r Marpin (2000) 57 W.I.R. 141 at 149 152. ]2001] 1 L.R.C. 632 (PC Dom) at 639 642; Observer Publications Ltd v Matthew [2001] UKPC 11. (2001) 58 W .I.R. 188 (PC A&B) at [25] [26]; IVonne r COP [2004] UKPC 8. (2004) 63 W.I.R. 79, [2004] 2 A.C. 430 (PC Gren) at [41]; Richardson v Raynor (2011) 78 W.I.R. 159 (SC Ber) at [14]; Williams v Independent Commission [2012] J.M .F.C. Full 1 (FC Jam) May 25, 2012. at [ 164] per Sykes J . 195 Papouette v AG [2010] UKPC 32; (2010) 78 W.I.R. 474; [20U] 1 A.C. 1 (PC TT) al [36] [43], l% Papouette, above. 197 See A&B Const s. 11; Dom Const s.9; Gren Const s.9; SKN Const s. 11; SLU Const s.9. SVG Const s.9. IW Above. See also Robinson v Sealev TT 1974 HC 8 (CARILAW) June 17. 1974 (HC TT) at 8 9; (1974) 1 C.C.C.B.R. 94 (FIC TT) at 101. 199 AG v Antigua limes (1975) 21 W.I.R. 560; [1976] A.C. 16 (PC A&B). See Margaret Demerieux. “The Delineation of the Right to Freedom of Expression” [1980] P.L. 359. a" Hinds v R (1975) 24 W.I.R. 326; [1977] A.C. 195 (PC Jam).

4. LIMITATIONS ON THE RIGHTS

441

judicial review under Caribbean constitutions to give full effect to supremacy of fundamental rights.201 On the face of it, the Newspapers Registration (Amendment) Act 1971 and Newspaper Surety Ordinance (Amendment) Act 1971 in Antigua Times breached the right of newspapers to freedom of expression. The issue was whether it could be justified as being “reason­ ably required” for legitimate public goals. The Privy Council said that in some cases a “mere perusal” of the law could establish it was “reasonably required”. It gave directions that a court should “presume, until the contrary appears or is shown, that all Acts passed by the Parliament of Antigua were reasonably required.”202 The applicant could displace this burden only by showing that the laws were manifestly arbitrary and the exertion of a “forbid­ den power”. The correct analysis had been in fact undertaken by the Court of Appeal, which was reversed on appeal to the Privy Council. Lewis CJ (Ag) had carried out a two-part analysis in which the burden rested on the applicant to establish a prima facie breach of the constitutional right. He recognised that in many cases, including the one before him, a prima facie breach was self-evident. Then the burden shifted to the State or respondent to show that the law fell within the permitted limits allowed by the Constitution, that is, the law was reasonably required for a specified public goal.203 In Hinds, the Privy Council had to determine whether in camera proceed­ ings in the newly established Gun Court violated the constitutional guarantee of protection of the law which included the right to court proceedings held in public.204 Relying on its reasoning in Antigua Times, the Privy Council presumed that the circumstances existing in Jamaica were such that hearings in camera in the Gun Court were “reasonably required” in the interests of public safety or public order. Lord Diplock said that the court should defer to Parliament’s own assessment of the Act’s compliance with the Constitution and presume that in camera proceedings were reasonably required. The presumption could be rebutted if there was bad faith or a manifest error or misinterpretation by Parliament.205 Bernice Lake concluded that this burden of proving both a prima facie breach of a right and that the breach could not be justified because of leg­ islative bad faith or misunderstanding was an “insuperable” one.206 Hinds acknowledged that the state typically has available to it the information related to justification but thought that such evidence should not be adduced in a judicial process because it involved considerations of public policy. By contrast, the more recent Privy Council decision, Cable and Wireless (Dominica) Ltd v Marpin, substantially rejects this logic and maintains that fundamental rights should not be overridden, without much more, by “general political or economic policy”.207 Marpin is but one of a series of 201 Bowe v R [2006] UKPC 10; (2006) 68 W.I.R. 10 (PC Bah) at [42], 202 AG v Antigua Times (1975) 21 W.I.R. 560 at 565; [1976] A.C. 16 (PC A&B). 203 AG v Antigua Times (1973) 20 W.I.R. 573 (CA WIAS) at 587 (reversed on appeal). 204 Jam Const s.20(4) (now repealed). 21,5 (1975) 24 W.I.R. 326 at 340; [1977] A.C. 195 (PC Jam). 206 Bernice Lake QC, “Prioritizing Socio-Economic Issues and Constitutional Democratization in the Caribbean” (Opening Address, UWI Open Campus Antigua and Barbuda Conference, Antigua, 2004) available at http:llwww.open.uwi.edulsitesldefaultlfileslbnccdelantigualconferencel papersllake.html [Accessed February 25, 2015]. 207 Cable and Wireless ( Dominica) Ltd v Marpin (2000) 57 W.I.R. 141 at 152, [2001] 1 L.R.C.

442

FUNDAM ENTAL RIGHTS A N D FREEDOMS

Privy Council cases after 1990 that confirm that the burden on an applicant in a bill of rights case is to establish a prima facie breach of the fundamental right; and, once this is done, the burden shifts to the state or those seeking to defend the law to show it can be justified for the purpose of protecting the public interest or the rights and freedoms of others.208 In these later Eastern Caribbean cases, the Privy Council has turned its back on the central element of its ruling in Antigua Times on the burden of proof in rights adjudication and now requires the state to meet the burden of showing justification for the restriction to guaranteed rights. Regrettably, none of the contemporary cases clarifies the status of, or even refers to Antigua Times or Hinds,209 which has cracked the door for the resurrection of the 1970s cases in more recent cases.210 (ii) Rational connection and proportionality In assessing whether limitations on rights can be justified, the general test is whether the limitations pursue a legitimate aim and are proportionate.211 A more detailed guide was provided in de Freitas v Permanent Secretary212 which has proved to be an influential guide.213 Especially in the early 2000s, Commonwealth judges widely used the de Freitas test as a test of proportion­ ality. The test had strong transnational and international antecedents. Lord Clyde borrowed from a Zimbabwean case214that had adapted the well-known

632 (PC Dom) at 641; Observer Publications Ltd v Matthew [2001] UKPC 11, (2001) 58 W.I.R. 188 (PC A&B) at [25]-[26]; Worme v COP [2004] UKPC 8, (2004) 63 W.I.R. 79, [2004] 2 A.C. 430 (PC Gren) at [41]; Richardson v Raynor (2011) 78 W.I.R. 159 (SC Ber) at [14]; Williams v Independent Commission [2012] J.M .F.C. Full 1 (FC Jam) May 25, 2012, at [164] per Sykes J. 208 See Cable and Wireless (Dominica) Ltd v Marpin (2000) 57 W.I.R. 141 (PC Dom) at 152; Observer Publications Ltd, above, at [25]—[26]; Worme, above, at [41]. See also Richardson, above, at [14]; Williams, above, at [164] per Sykes J. 209 AG v Caterpillar Americas (2000) 62 W .I.R. 135 (CA Guy) at 147-48,174. Grant v R [2006] UKPC 2; (2006) 68 W.I.R. 354 (PC Jam) at [15]. See above para.3-032. 210 Tracy Robinson, “The Presumption of Constitutionality” (2012) 37 W IU 1,18-19. 211 See Suratt v AG [2007] UKPC 55, (2007) 71 W.I.R. 391, (2008) 1 A.C. 655 (PC TT) at [58] cited in Public Service Appeal Board v Maraj [2010] UKPC 29, (2010) 78 W .I.R. 461, [2011] 3 L.R.C. 616 (PC TT) at [31]; Weel v AG (2011) 78 W.I.R. 22 (CA Bds) at [25], [28]. 212 de Freitas v Permanent Secretary (1998) 53 W.I.R. 131; [1999] 1 A.C. 69 (PC A&B). 213 British Caribbean Bank Limited v AG BZ 2010 SC 53 (CARILAW) July 30,2010 (SC Bze) at [115]-[123]; Peters v AG (2001) 62 W .I.R. 244 (CA TT) at 325-30; Observer Publications Ltd v Matthew [2001] UKPC 11, (2001) 58 W.I.R. 188, [2001] 4 L.R.C. 288 (PC A&B) at [15]-[30]; Chaitan v AG (2001) 62 W.I.R. 244 (CA TT) at 325-30; Northern Construction Ltd v AG TT 2002 HC 104 (CARILAW) July 31, 2001 (HC TT) at 35-50; Charles v COP GD 2003 HC 10 (CARILAW) March 26, 2003 (HC Gren) at 3-5; Gerald v The Governor KN 2003 HC 14 (CARILAW) April 28, 2003 (HC SKN) at [18]—[24]; Capital Bank International Ltd v Eastern Caribbean Central Bank GD 2003 CA 7 (CARILAW) March 10, 2003 (CA Gren) at [5]—[14]; Worme v COP [2004] UK PC 8, (2004) 63 W.I.R. 79, [2004] 2 A.C. 430 (PC Gren) at [40]-[43]: Lake v AG A l 2004 HC 8 (CARILAW) April 5, 2004 (HC Ang) at [48]-[49]; Cabey v The Governor MS 2004 HC 1 (CARILAW) October 21,2004 (HC M ont) at [11]-12]; AG v Nias KN 2008 CA 7 (CARILAW) November 25, 2008 (CA SKN) at [10]-[12], [26]-[29]; AG v Northern Construction Ltd TT 2009 CA 8 (CARILAW) February 27, 2009 (CA TT) at [21]-[26]; Boyce v AG BZ 2010 SC 53 (CARILAW) July 30, 2010 (SC Bze) at [110]-[123]; Ferguson v AG TT 2010 CA 53 (CARILAW) December 17,2010) (CA TT) at [8]-[26]; Weel v AG (2011) 78 W.I.R. 22(CA Bds) at [17]-[41]; Richardson v Raynor (2011) 78 W.I.R. 159 (SC Ber) at [67]-[81]. 214 Nyambirai v National Social Security Authority [1996] 1 L.R.C. 64 (SC Zimb) at 75.

4. LIMITATIONS ON 1HE RIGHTS

443

Canadian Oakes test.215 The Canadian jurisprudence had been influenced in turn by that of the European Court on Human Rights.216 The de Freitas test on limits to guaranteed rights is as follows: i. Is the legislative objective sufficiently important to justify limiting a fundamental right217; ii. Are the measures designed to meet the legislative objective rationally connected to it218; and iii. Are the means used to impair the right or freedom no more than is necessary to accomplish the objective?219 A more comprehensive test of proportionality includes this fourth element: iv. The law has met the overriding consideration of the need to strike an appropriate balance between the interests of the society and those of the individuals and groups affected.220 It is now accepted that de Freitas does not go far enough by asking if “the means used to impair the right or freedom are no more than is necessary to accomplish the objective”. This neglects the sufficient consideration of the need to strike an appropriate balance between the interests of the society and those of the individuals and groups affected.221 As Jamadar J observed in Sanatan Dharma Maha Sabha,222 “the more substantial the interference with a protected fundamental right the greater must be the justification for any limitation or inhibition.”223 As part of an analysis of strict proportionality, the overall sacrifice imposed on the restricted right with the benefits derived from pursuing the aim must be rigorously weighed.224 In assessing this, the Inter-American Court of Human Rights looks at 2,5 R v Oakes [1986] 1 S.C.R. 103 (SC Can). 216 Margit Cohn, “Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the U K ” (2010) 58 AJCL 583, 620; Michael Taggart, “Proportionality, Deference, Wednesbury” 2008 NZ Law Review 423, 437. de Freitas was the first articulation of a proportionality test by British judges and was used in their inter­ pretation of the U K Human Rights Act 1998. See Huang v Secretary of State [2007] UKHL 11, [2007] 2 A.C. 167 (HL); International Transport Roth GmbH v Secretary of State [2003] Q.B. 728; Matthews v Ministry o f Defence [2002] EWHC 13; [2002] C.P. Rep. 26 (QB). 2,7 de Freitas v Permanent Secretary (1998) 53 W.I.R. 131 at 143-144; [1999] 1 A.C. 69 (PC A&B) at 80 81. 218 de Freitas, above. 219 de Freitas, above. 220 Huang v Secretary of State [2007] UKHL 11; [2007] 2 A.C. 167 (HL) at [19]. See R v Oakes [1986] 1 S.C.R. 103 (SC Can). 221 Huang, above. 222 Sanatan Dharma Maha Sabha v AG (2009) 76 W.I.R. 378 (HC TT). m Sanatan Dharma Maha Sabha, above, at, 441. 224 In the Inter American human rights system, restrictions on rights cannot be abusive or arbi­ trary. In assessing whether a measure is necessary in a democratic society, the test is whether it is regulated by the law, pursues a legitimate goal and meets the requirements of suitability (rational connection), necessity (least restrictive means) and proportionality (in the strict sense). See Kimel v Argentina ( Merits, Reparations and Costs), Inter-American Court of Human Rights Series C No. 177 (May 2, 2008) at [83], and Chaparro Alvarez and Lapo Ihiguez v Ecuador ( Preliminary

444

l U N D A M I N 1 A I R K i I l l S A N D 1 Rl l-'HOMS

“(i) the level of harm to one of the rights at stake, dote) mining whether the level of this harm was serious, intermediate or moderate: (ii) the impor­ tance of ensuring the contrary right, and (iii) whether ensuring the latter justifies restricting the former.”:;b (iii) The single lest: "reasonably required or "reasonably justified” /(il­ legitimate aims ”

9-024

The limitation clause found in the older conventional bills of rights such as the Barbados Constitution, and which has been retained in the Guyana Constitution, states that: “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required [for legitimate state goals]”.22" 1he most commonly stated aims arc the interests of defence, public safety, public order, public morality and public health. Weel v A (iy:! confirms that the real question in assessing limits to rights under this clause is whether the measure pursues a legitimate aim and is proportionate to it.1-8 Since these constitutions identify specific legitimate objectives, the first inquiry in assess­ ing reasonableness is whether the measures undertaken are rationally con­ nected to one of the state goals. Thereafter, the test of proportionality must be applied, which includes both evaluating whether the means used to impair the right are more than necessary to realise the objective (de Freitas (iii)) and the Huang gloss- whether the measure strikes an appropriate balance between the interests of those affected and the society. A similar approach would apply to the newer constitutions in the over­ seas territories. The main limitation clause in these constitutions models the I’XTIR and states that the intrusion on the right must be “reasonably jus­ tifiable in a democratic society” for specified legitimate state goals like the interests of defence, public safety, public order, public morality and public health.229 Since the constitutions identify legitimate goals, the focus of an inquiry into an intrusion on a right would be on rational connection and proportionality as outlined in (ii), (iii) and (iv) above.

Objections, M erits, Reparations and C osts). Inter-American ( ourt of llnm an Rights Series C No. 170 (November 21. 2007) al [93]: trisran Donosov. r Panama. Inter American C ourt ol Human Rights Series C No. 193 (January 27, 2009) at [56]: Fscher r Bra.il. Inter-American ( ourt ol'IIum an Rights Series C No. 7(10 (July 6. 2009) at [116]: Atala Riffo v Chile. Inter American

Court of Human Rights Series C No. 239 (February 74, 2012) at [164], Artavia Murillo ("In Vitro F ertilization”) v Costa Rica. Inter-American Court of Human Rights Series C No. 257 (November 28, 2012) at [274]; Kinwl r Argentina. Inter-American Court of Human Rights Series C No. 177 (May 2. 2008) at [84]. e.g. Bds”Const s i 7(2). n Weel v A C (2011) 78 W.I.R. 22 (CA Bds). VR Above, at [28]. : -y e.g. A&B Const s. 13(2).

4. LIMITATIONS ON THE RIGHTS

44 5

(iv) The two-tiered test in conventional bills o f rights: “reasonably required” and ‘‘reasonably justifiable” The main limitation clauses in most conventional bills of rights have 9-025 a primary and a default element.230 The restrictions on the right must be reasonably reqinred for one of the specified legitimate goals as in Barbados—the primary element. If this criterion is met, it is open to the applicant to show the restrictions were nevertheless not reasonably justifi­ able in a democratic society—the default element. The crux of this limita­ tion clause is the first tier. In his 1974 decision in Robinson v Sealey,2M Georges J commented, obiter, that it is “difficult to conceive of a case in which a law would be held to be reasonably required . .. but not reason­ ably justifiable.”232 Indeed he wondered about the need for the second part of the test at all.233 Ironically, de Freitas test fails to offer a coherent way of interpreting this peculiar two-tiered limitation clause. The Privy Council made the “reasona­ bly required” and “reasonably justifiable” aspects virtually indistinguishable. The Board also provided the least guidance where it is needed the most—to determine whether a law is “reasonably required”. In de Freitas the Privy Council held that the categorical restriction on the freedom of expression of civil servants was not reasonably required for the proper performance by these employees of their duties because it amounted to a blanket restriction placed on all civil servants from communicating on matters of political con­ troversy. Beyond this finding, that the law was too wide, de Freitas provides little structured guidance on how to determine if a law is reasonably required, the primary tier of the limitation clause. Nevertheless, having found a prima facie breach of freedom of expression, and concluded that the contravening law was not reasonably required, the applicant’s case had been established. The question of whether the law was reasonably justifiable in a democratic society simply did not arise. It was only relevant if the law was found to be reasonably required. Yet it is for this default criterion that Lord Clyde prof­ fered his more developed three-part test of rationality and proportionality.234 There is little to distinguish his analysis that the law was not reasonably required because it was excessive and too wide from his conclusion that the law was not reasonably justifiable in a democratic society because the means used to impair the right were more than necessary to accomplish the objective. In effect, the analysis Lord Clyde provided for the two parts of the limitation clause was the same! The de Freitas' three-part test would be far more apposite as the primary proportionality test to determine if the law is reasonably required. The first 230 See e.g. provisions on freedom of expression Ang Const s. 11 (2); A&B Const s. 12(4), Bah Const art.23(2); Ber Const s.9(2); Gren Const s . 10( 2); SLU Const s . 10( 2): SKN Const s.l2(2); SVG Const s. 10(2). 231 Robinson v Sealey TT 1974HC 8 (CARILAW) June 17,1974; (1974) 1 C.C.C.B.R. 94 (HC TT). 232 Robinson, above, at 101. 233 Robinson, above. 234 Of course, it is the default element that bears the closest resemblance to provisions in the European Convention on Human Rights 1950 that permits limits that are “necessary in a democratic society” .

446

HTNDAMKN 1'AI. R K illl'S A N D lR h liD O M S

part of the test would fall away is the legislative objective sufficiently impor­ tant to justify limiting a fundamental right? because the constitutions iden­ tify legitimate legislative goals. The focus would be on establishing a rational connection between the measures and the legislative objective and the pro­ portionality of the measures. “[Reasonably justifiable in a democratic society”, the default element, on the other hand, should be understood to impose an added and “overriding”235 standard that goes beyond the three part test and to imply what we have referred to as the “Huang gloss”. The default element establishes an “irreduc­ ible minimum” standard below which that society must not go.136 The over­ riding test of reasonably justifiable in a democratic society would survey the broader implications for that society of limiting the protected rights. It would give more consideration to balancing the protected rights against the interests of society, asking “is the infringement too high a price to pay for the benefit of the law”.237 It would scrutinise more closely the severity and consequences of the interference on the right.238 This demands that the most serious consid­ eration be given to the values that have informed the right when balancing rights against the public interest.239 “[Reasonably justifiable in a democratic society” as an overriding standard is not an “entirely abstract transcend­ ent notion”.240 It includes some “universally accepted referentials” such as the application of the rule of law241 and respect for fundamental rights as a society.242 It also permits consideration of local circumstances.243 Simply put, the overriding test of reasonably justifiable in a democratic society requires further scrutiny to achieve an appropriate balance between the interests of the society and those of the individuals and groups affected, the element that is missing in the three part de Freitas test.244 ( v) Jamaica: Demonstrably justifiable 9-026

l he chief limitation clause in the Jamaica Constitution permits limits on the guaranteed rights if they can “be demonstrably justified in a free and demo­

235 Huang v Secretary of State [2007] U K HL 11; [2007] 2 A.C. 167 (HL) at [19]. 23,1 See Northern Construction Ltd v A G I T 2002 HC 104 (CARILAW) July 3 L 2002 (HC TT) at 45 per Jamadar J. n? Peter Hogg, Constitutional Law of Canada, 5th edn supplemented, Vol 2 (Carswell, 2007). at para.38.12. 23S See Lord Bingham's criticism of the de Freitas test in Huang v Secretary of S tate [2007] UKHL 11; [2007] 2 A.C. 167 (HL) at [19]. 239 M argaret Demerieux, “ Establishing the Democratic Credentials of Legislation: 'R v Oakes' and Section 4 of the Human Rights Act (1998) UK" (2001) 30 Comm 1. World Rev 193, 204. 240 State v Khoyratty [2006] UKPC 13; [2007] 1 A.C. 80 (PC Maur) at [12]. 241 Lassalle v A G ( 1971) 18 W.I.R. 379 (CA TT) at 394. 242 See TT Const s. 13. 243 Northern Construction Ltd v AG 'IT 2002 HC 104 (CARILAW) July 31 2002 (HC TT) at 40. In that case he took judicial notice of Trinidad and Tobago as a country “though historically considered a stable non-violent society, [was] nevertheless a potentially fragile democracy with divisions in the society that run very deep” (above). 144 Huang v Secretary of State [2007] U K H L 11; [2007] 2 A.C. 167 (HL) at [19], In Caribbean constitutions that lack this proviso, there is no reason why this deeper understanding of propor­ tionality should not integrated into analyses as a fourth criterion.

4. LIMITATIONS ON THE RIGHTS

447

cratic society”.245 This borrows heavily from s.l of the Canadian Charter of Rights and Freedoms 1982 which provides that: “The Canadian Charter o f Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Unlike the Canadian Charter, Jamaica’s Constitution does not include a requirement that the limits be “reasonable” and “prescribed by law”. Jamaica’s Joint Select Committee of Parliament shared its view that even though Jamaica’s then proposed s. 13(2) differed slightly from its Canadian model, it expected that decisions in relation to the Canadian provision, like R v Oakes, would be used as guide in interpreting the Jamaican Constitution.246 The requirement of “reasonableness” should be implied and the limitation clause should be interpreted using the widely applied standards of seeking to establish a rational connection between the measure and a legitimate goal and the reasonableness and proportionality of the measures.247The standards of reasonableness and proportionality can readily be implied from the consti­ tutional commitment to the rule of law which “imbues” the constitution with “fundamental requirements” of rationality and reasonableness, the aim being to secure protection against the arbitrary exercise of state power.248 While the Constitution fails to mention the requirement of legality, it is usually a minimum requirement where there are express limitations. The principle that any interference with a right requires a valid legal foundation is one of the pillars of systems for protection of human rights.249 (d) Special Acts in Trinidad and Tobago Trinidad and Tobago is now the only Anglophone Caribbean country that makes provision for “special Acts”.250 These are laws passed by a special pro­ cedure that are allowed to derogate from the protected fundamental rights and freedoms. Section 13 states: “An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 [the guaranteed rights] and, if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.” Such legislation must be passed by at least a three-fifths majority in each House and contain an express declaration that it will have effect despite any 245 See Jam Const s.l3(2). 246 Jamaica, “Report of Joint Select Committee of Parliament on the Charter of Rights and Freedoms Constitutional (Amendment) Bill 2006” (July 25, 2006), at 13. 247 Williams v Independent Commission [2012] J.M .F.C. Full 1 (FC Jam) May 25, 2012, at [164] per Sykes J. 248 A G v Joseph [2006] CCJ 3 (AJ), (2006) 69 W.I.R. 104 (CCJ Bds) at [20] per Wit J. 249 Christian Tomuschat, “Democracy and the Rule o f Law” in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP, 2013), pp.469,491. 750 In 2011, when it enacted the new “Charter of Fundamental Rights and Freedoms”, Jamaica repealed s.50 of its Constitution which made provision for special Acts in Jamaica.

9-027

148

I t ' N D AMI N I \ !

R K . I l l s A N D I HI I D( >:vlS

inconsistency with the guaranteed rights."'’1 I his majority is s lig h tly less than that required to amend the provisions dealing with guaranteed rights, which is a two-thirds majority in each House.25- Judicial review is reintroduced through a proviso, which permits challenge to the legislation on the ground that it is not reasonably justifiable in a society that has a proper respect t'oi the rights and freedoms of the individual. Section 13 formed part of the 1962 independence constitution and was retained when the country became a republic in 1976. (i) Special procedure or sole limitation clause? 9-028

Uncertainty has dogged the special Act clause and has inevitably impacted judicial interpretation of the section, which has been inconsistent and muddled. In AG v Northern Construction,25} Archie C'J candidly acknowledged that understanding of the proviso in s. 13 is an "‘evolving concept A2'4 In Morgan v AG,255 an early ease concerning the justifiability ot rent restriction legislation, the Privy Uouncil was content with the unscientific observation that

h

"‘many societies which pay proper regard to the rights and freedoms of the individual conclude that it is reasonably justifiable lo control housing rents without at the same time making any attempt to control other incomes oi to control other prices.”236 Despite the complete lack o f p ro o f for this assertion, it was enough Lo deter­ mine the action on the basis that the legislation in question did not run afoul of the proviso.

/

The interpretation of s. 13 remains in flux after the Court of Appeal's split decision in Francis v AG?''1 As already observed, Trinidad and 1obago's bill of rights is a very brief one that articulates no general limits on the guaranteed rights. The fundamental issue which divided the Court of Appeal was whether general limits on these rights are implied, as has been assumed,258 or whelher the s. 13 procedure provides the only means for post-indcpcndcnee legislation to limit a guaranteed right, save in emergency situations. Uncertainty on this point catapulted into prominence because of the remarks in 2009 of the former Chief Justice of Trinidad and Tobago and then President of the CCJ. Michael de la Bastide, who posited extra judicially that rights in the Trinidad and Tobago Constitution are absolute and “there is no provision which saves from invalidity Acts of Parliament passed by a simple majority which are inconsistent with the fundamental rights and freedoms of the individual”"''9 I T Const s. 13.

Above, s.54{2)(a). AC, v Northern Constitution Ltd TT 21)09 CA 8 (CARILAW) February 27. 2009 (FA I I ). - ’■* Northern Construction, above, at [25], Morgan v AG ( m i ) 36 W.I.R. 396 (PC TT). -M’ Morgan, above, at 398.

•”’7 Francis r AG Unrcportcd February 14. 2014 (CA 1 I ). 138 See above para.9 016.

' sy Michael de la Bastide. "Developments in Judicial Protection oi ilum an Rights- in the

4. LIMITATIONS ON THE RIGHTS

449

This view found traction only with a minority in Francis,260 albeit a commanding one, that authored a spirited judgment in its defence. Archie CJ and Jamadar JA in Francis in their joint opinion took the view that the only limits to fundamental rights in the Trinidad and Tobago Constitution are those explicitly stated in the text, which they identified as provisions for existing laws (s.6), legislation passed in emergency situations (s.7), laws passed by special majorities (s. 13), and alterations of the right itself (s.54).261 Aside from these specific circumstances, rights in Trinidad and Tobago are expressed in absolute terms, unlike everywhere else in the Caribbean.262 This, the minor­ ity argues, was the deliberate intent of the framers, meant to address the unique socio-political climate of the country at the time of Independence, which was “fraught with anxiety, suspicion and fear.”263 They cast serious doubt on the statement of Baroness Hale in Suratt v AO164that the rights in the Trinidad and Tobago Constitution are subject to the implied rule that they can be limited by measures that pursue a legitimate aim and are proportionate.265 After some references to the record of public consultations held in 1962 on the draft Constitution, and particularly the debates between Ellis Clarke, the government’s constitutional adviser, and Hugh Wooding on behalf of the Bar Association, Archie CJ and Jamadar JA concluded that the Independence Constitution and its successor were “clearly the products of the citizens of Trinidad and Tobago and were designed to achieve particular ends, includ­ ing particular political ends.”266 The judges argue that this interpretation is justified by sound policy reasons, in that the required disclosure of an intent to restrict a fundamental right would preclude abrogation by “subter­ fuge”, inspiring informed debate both in and out of Parliament. Moreover, the requirement of a higher majority would necessitate broad non-partisan support for any proposed limiting measures.267 On the face of it, these are attractive arguments, particularly because they seek to understand the distinct history of Trinidad and Tobago and do not assume that the radically different form of bill of rights found in Trinidad and Tobago must be interpreted in the same way as conventional Caribbean bills of rights. However the turn to the intention of the framers is not without dif­ ficulties. When Caribbean courts speak of the “framers” intention’, it is rarely to import a strong concept of originalism.268 When this terminology is used, judges pay close attention to the language used in the constitutions and their broader context including “the surrounding circumstances with reference to which [the constitutions were] made.”269 This is for good reason. Closely Commonwealth Caribbean” (Keynote Address, Inaugural Symposium: “Current Developments in Caribbean Community Law”, Port of Spain, November 9, 2009) at [19]. 260 Francis v AG Unreported February 14, 2014 (CA TT). 261 Francis, above, at [54]. 262 Francis, above, at [52]. 263 Francis, above, at [28], 264 See Suratt v AG [2007] UKPC 55, (2007) 71 W.I.R. 391, (2008) 1 A.C. 655 (PC TT) at [58], cited in Public Service Appeal Board v Maraj [2010] UKPC 29,(2010) 78 W .I.R. 461, [2011] 3 L.R.C. 616 (PC TT) [31]; Weel v AG (2011) 78 W .I.R. 22 (CA Bds) at [25], [28]. 265 Suratt, above, at [58], 266 Francis v AG Unreported February 14, 2014 (CA T T) at [47]. 267 Francis, above, at [61] per Archie CJ and Jamadar JA. 268 See above paras 3 0 0 3 - 3-006. 269 Hinds v R (1975) 24 W.I.R. 326 at 330; [1977] A.C. 195 (PC Jam) at 211.

9-029

I TNI)

0.20

/

Wil N I \l

IO (.11IS \ NI >

Mil I I ' ! *M

searching. for IVamcrs in t e n t leads us inU> a minefield. M a n y ol th e semi nal dis cu s s io n s w ith d r a f t e r s like C l a r k e at i n d e p e n d e n c e l o o k place in pr iv a t e a n d d o n o t necessarily reflect political c o n s e n s u s . 27" T h e m i n o r i t y in fr a u d s c o r r e c t l y p o i n t s o u t th a t d e e p d is tr u s t m a r k e d t h e c o n s t i t u t i o n - m a k i n g p r o c e s s a t i n d e p e n d e n c e , b u t t h e h is to r ic al e v i­ d e n c e s u g g e s ts t h a t th e f o r m e v e n t u a l l y se ttled o n w a s th e p r o d u c t o f b o t h c y ni ca l c a l c u l a t i o n a n d p oli tic al c o m p r o m i s e t h a t h a d m o r e to d o with securing independence, th a n articulating an a p p ro p ria te model for local c i r c u m s t a n c e s . 271 l a r f r o m a c o h e r e n t a n d pla in i n t e n t i o n , t h e re w a s c o n s i d e r a b l e a m b i v a l e n c e a b o u t c o n s t i t u t i o n a l bills o f rights in 1962 w h e n T r i n i d a d a n d T o b a g o b e c a m e th e s e c o n d A n g l o p h o n e c o u n t r y to gain i n d e p e n d e n c e , b r i e W i ll i am s , th e P r e m i e r at th e time, r e p u t e d l y w a n t e d a bill o f rig ht s w h i c h w o u l d n o t u n d u l y l e t t e r legislative f r e e d o m , w hic h a c c o r d i n g t o th e a d v i c e lie rec eived w a s s e c u r e d bv t h e C a n a d i a n m o d e l o f b r o a d l y s t a t e d r i g h t s . 2'2 T h i s w a s resisted b y R u d r a n a t h C a p i l d e o , le ad er o f the D e m o c r a t i c L a b o u r P ar ty , w h i c h p r i m a r i l y r e p r e s e n t e d I n d i a n i n t e r ­ ests; he f a v o u r e d t h e c o n v e n t i o n a l bill o f rig ht s b a s e d o n th e I9 60 N i g e r i a n C o n s t i t u t i o n . 271 H o w e v e r . C a p i l d e o c o m p r o m i s e d o n t h e C a n a d i a n m o d e l w h e n it w a s a g r e e d t h a t it w o u l d be a u g m e n t e d a n d m a d e j u s t i c i a b l e . " ?t C h a r l e s P a r k i n s o n r e c o u n t s t h a t in th e e n d W i ll i a m s a g r e e d to a m od i f ie d C a n a d i a n bill o f rights m o d e l s o t h a t i n d e p e n d e n c e c o u l d be o b t a i n e d in A u g u s t 1962, in time f o r h i m to a t t e n d t h e C o m m o n w e a l t h P r i m e M in is te r s' m e e t i n g in ea rl y S e p t e m b e r . 275 L o n g be fo re B a r o n e s s H a l e a r ti c u la te d her n o w co n t ro v e r si a l h o ld i n g in Suratt 276 o n the implied limits t o rights in t h e Trinidad a n d T o b a g o C o n s t i t u t i o n , in ( 'ollyniorc r AG211 W o o d i n g CJ suggested t h a t s.4 rights co u ld be limited by P a r l i a m e n t ' s p o w e r to pas s laws for the peace, o r d e r a n d g o o d g o v e r n m e n t o f th e c o u n t r y . 1711 1 his view is h a r d to dismiss since W o o d i n g was the p r i m a r y p r o p o n e n t o f the C a n a d i a n m o d e l bill o f rights a n d h a d been in t e ­ grally involved in the c o n s u l t a t i o n pro ce s s for the d r a f ti n g o f the in d e p e n d e n c e c o n s t i t u t i o n . 1'" ('ollymore also m a k e s it clear t h a t rights the mselves c o n t a i n in h ere n t limits, w h e t h e r for th e p r o m o t i o n o f pu bli c o r d e r or t o p r o te c t the rights a n d f re ed om s o f others. As W o o d i n g CJ elegantly p o i n t e d out, “ their c o n s t i t u t i o n a l l y - g u a r a n t e e d existence n o t w i t h s t a n d i n g , f r e e d o m o f m o v e m e n t is n o licence f o r tre s p as s , f r e e d o m o f c o n s ci e n ce no licence for sedition, f r e e d o m o f ex p re ss io n no licence for obs cenity, f r e e d o m o f a s s e m ­ bly no licence for riot a n d f r e e d o m o f th e press no licence lot libel.""1"

' " See above para.3 004. 1 Charles Parkinson. Hills t>J H i I S aihl P . eiiloiiiziitinii: I he I 'liiergau e