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CONSTITUTIONAL
LAW
U.W.I.
Faculty of Law
1
CONSTITUTIONAL & HISTORICAL BACKGROUND
The principles of constitutional law set out the relationship between the different organs of state as well as
the relationship between the state and its citizens. The constitution may be written or unwritten or it may
be contained in a single document or derived from a number of sources (UK).
A constitution (written) may be a primary document or may be a schedule to another one (amaica).
Structur
!t is divided into chapters or parts and one separately dealing with the powers and functions of the three
arms of the state.
There is also a chapter that deals e"clusively with the fundamental rights and freedoms# commonly called
the $ill of %ights.
!roc""
1. &ocal 'rafting
(. &ocal 'ebates on the 'raft
). 'iscussion and negotiation in *ngland at +onstitutional +onvention
,. %atification by &ocal &egislature
-. UK Act of .arliament
/owever0 one criticism is that +aribbean constitutions were 1imposed2 and there is a lac3 of autochthony
(wasn2t home grown).
Trinidad and Tobago as well as 4uyana abandoned the !ndependence +onstitution.
How Or#$#%al Ar I%&'%&%c Co%"t#tut#o%"(
They lac3 originality.
5orman 6anley suggests that appro"imately 789 of constitution is the same as e"isted as before
independence.
Hinds v The Queen [1976] 1 All ER 353:
Lor& D#'loc) said: ;<the people for whom new constitutions were being provided were already living
under a system of public law in which the local institutions through which government was carried on0 the
legislature0 the e"ecutive and the courts0 reflected the same basic concept. The new constitutions0
particularly in the cases of unitary states0 were evolutionary not revolutionary. They provided for
continuity in government through successor institutions0 legislative e"ecutive and =udicial0 of which the
members were to be selected in a different way0 but each institution was to e"ercise powers which0
although enlarged0 remained of a similar character to those that had been e"ercised by the corresponding
institution that it had replaced.>
W"t*#%"tr +o&l,Styl -./'ort +o&l0 Co%"t#tut#o%
The ?estminster 6odel is characterized the following:
(
i. /ead of @tate A /er 6a=esty Bueen *lizabeth !!0 represented by the 4overnor 4eneral. !n
Trinidad the /ead of @tate is the .resident and performs the same role as /er 6a=esty.
ii. @eparation of /ead and @tate and the /ead of 4overnment (there is a fusion of both offices in the
U.@ and 4uyana).
iii. +abinet 4overnment A the .rime 6inister chooses cabinet members from .arliament and cabinet
members are collectively responsible to .arliament. Together they compose the *"ecutive.
iv. The .rime 6inister must come from the lowerCelected house.
v. The ?estminster 6odel has a bicameral legislation (@enate and the /ouse of %epresentatives).
vi. There is a similar voting system A first past the post compared to proportional representation
(D89 of votes E D89 of seats).
The ?estminster 6odel connotes a separation of powers0 but in practice this is mostly demonstrated by
the independence of the =udiciary.
D#ffr%c 1tw% Car#11a% a%& U.K Co%"t#tut#o%
1. @ingle source vs. several sources
(. @upremacy of +onstitution vs. .arliamentary @upremacy
). Fundamental rights and freedoms are entrenched A a simple ma=ority in parliament can2t change
them.
A''l#cat#o% 2 Rl3a%c of t4 tr* 5W"t*#%"tr +o&l6
Ade!enro v A"intola [1963] 3 #$R 63
To paraphrase Giscount %adcliff 1the 5igerian constitution must be interpreted according to the wording
of its own limitations and not to limitations which that wording does not import0 and while it may be
useful to draw on $ritish practice in interpreting a phrase# it is the wording of the constitution that is to be
interpreted and applied.
!t is not enough to say it is ?estminster @tyle# you have to loo3 at language and particular style.
Structur
@ome constitutions have a preamble. That is0 a recital of the goals and aspirations of the people
(amaica don2t). /owever0 it is not generally an enforceable part of the constitution.
The @upreme &aw +lause A the constitution proclaims its supremacy over all other law. @ome
constitutions e"pressly use the word 1supreme law2. !t declares all other laws that are inconsistent
with the constitution to be null and void (s. ().
There is a chapter that protects fundamental rights and freedoms:
a) The individual rights are sub=ected to public interest and public safety
b) They provide for redress in the @upremeC/igh +ourt where there has been a breach of those rights
such as freedom of e"pression0 assembly0 right to a fair trial
c) @avings &aw +lauses A it saves laws that e"isted prior to the constitution even if it is inconsistent
with it.
6achinery for change A the constitution is supreme. The constitution itself sets out the process by which
its provisions can be changed.
There are different levels of entrenchment of the provisions in the constitution.
!n order to change the constitution0 different parliamentary ma=orities are reHuired.
%ini&u& re'uire&ent ( ma=ority of the members of parliament of those present as long as they form a
Huorum (ma"imum of twenty people).
)
)i&ple &a*orit+ of the parti,ular House -)enate. House of Representatives/
A!solute %a*orit+ -!oth Houses/
013 &a*orit+
+t4o&
The constitution cannot be changed by implication. !t must be changed by e"press amendment such as a
declaration of intent.
There must be a delaying period.
@ome provisions reHuire a referendum (difficulty A partisan politics)
'ifficulty in changing A interlocutory A impacts on another section of the constitution0 thus the change
affects another section.
SU!R.+AC7 OF TH. CONSTITUTION AND 8UDICIAL R.9I.W
!arl#a*%tary Su'r*acy
'icey ;the principal of parliamentary sovereignty means that parliament has the right to ma3e or unma3e
any law whatever and that no person or body is recognized by the law as having a right to override or set
aside the legislation of parliament.>
!n practice0 what it means is that parliament has control over its internal proceedings and that the courts
will not review this process to see if parliament conform to the manner and form reHuirements for ma3ing
laws.
T4o*'"o% in his wor3 :T/t1oo) o% Co%"t#tut#o%al a%& A&*#%#"trat#3 Law;0 e"plains the doctrine
thus: ;The<supremacy of .arliament is a legal doctrine which refers to the relationship between the
courts and Acts of .arliament. The nature of this relationship is that the courts must give effect to Acts of
.arliament. They may not deny them legal effect0 as can happen in the +ommonwealth +aribbean0 where
incompatibility with the constitution is a basis on which the courts may stri3e down legislation.>
Edin!urh and 2al"ie Rail3a+ -1450/:
!n said case a point was made about a private Act that was passed by .arliament. !t affected a vested right.
!t was contended that it could not be made applicable to a person who had been given no notice of the
introduction of the $ill. !r Lor& Ca*'1ll paraphrasing him said that if it appears that a bill has
passed both houses and received the royal assent0 no court could inHuire into the mode in which it was
introduced into parliament0 nor into the action ta3en before its introduction0 or what happened in
parliament during its progress in its various stages through both houses.

The second aspect of parliamentary sovereignty means that the courts will not review acts of parliament
they will only interpret them. ?hat they can do is to ma3e what is 3nown as a Dclarat#o% of
I%co*'at#1#l#ty0 for instance0 with international law. ?hen they ma3e this declaration0 although
parliament is not bound by it0 in practice0 parliament will ta3e steps to be compatible with whatever area
its policies are in conflict with.
,
!n the United Kingdom the doctrine of .arliamentary @upremacy renders the courts powerless to Huestion
the legality and constitutionality of primary legislation. This remains the position today0 despite the
ac3nowledgement by modern te"t writers that one of the impacts of $ritain2s participation in the
*uropean Union is that .arliamentary supremacy may no longer be regarded as the cornerstone of $ritish
constitutional law.
Lor& Nola% pointed out the fact that as a matter of law .arliament2s ultimate sovereignty remains intact0
but that0 its influence has diminished over the years and e"ternal developments0 which it is unable to
control0 are tending to diminish the influence further.
The third one is that parliament is not bound by its predecessors. ?hat parliament does today would not
bind it in the future.
6la,"!urn 577 v8 The A89 [1971] 0 All ER 046:
The plaintiff brought two actions against the Attorney 4eneral claiming declarations to the effect that0 by
signing the Treaty of %ome0 /er ma=esty2s 4overnment would irreversibly partly surrender the
sovereignty of the +rown in .arliament and in doing so0 would be acting in breach of the law. .3l#$4 8.
upheld the order of the master stri3ing out the statements of claiming as disclosing no reasonable causes
of action.
In appeal by the plaintiff: J D%%#%$ +.R ;<?e have all been brought up to believe that0 in legal
theory0 one .arliament cannot bind another and that no act is irreversible. $ut legal theory does not
always march alongside political reality<&egal theory must give way to practical politics<@o whilst in
theory 6r. $lac3burn is Huite right that no parliament can bind another0 and that any parliament can
reverse what a previous parliament has don0 nevertheless so far as this court is concerned0 ! thin3 we will
wait until that day comes. ?e will not pronounce upon it today.
!n the United Kingdom as far as primary legislation is concerned all that the court can do is declare the
law. This is compounded by the fact that $ritain has no written constitution against which to measure the
legality of an act of .arliament.
6ritish :oal :orporation v8 The Queen [1935] A::
After finding that Sct#o% < of the Statut" of W"t*#%"tr had vested in the .arliament of +anada the
full power to legislate even in contradiction of !mperial @tatutes0 Lor& Sa%)y said that there is no doubt
that the !mperial .arliament2s power to pass on its own initiative0 any legislation that it thought fit
e"tending to +anada remains unimpaired in theory# that the !mperial .arliament could as a matter of
abstract law0 repeal or disregard Sct#o% < of the statute. /e said that this was however theory and has no
relation to realities.

These cases show that where parliament enacts laws with significant international and political
ramifications# for instance0 the granting of independence0 a subseHuent parliament would not repeal that
law. *ven though0 in principle0 it has the right to do so.
The UK practices parliamentary supremacy. /owever0 their membership into the *U imposes upon them
certain obligations.
The /uman %ights Act was passed to comply with the *uropean +onvention on /uman %ights.
*ven though parliament can repeal certain law0 in practice they would not do so because they would be in
breach of their international obligations.
?hat courts can do in parliamentary supremacy is to ma3e a 5&clarat#o% of #%co*'at#1#l#ty6. ?ith this
ruling parliament would then change the law even though they are not bound by the ruling of the courts.
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T4 D*#" of !arl#a*%tary Su'r*acy #% t4 Car#11a%
?hen $ritain decided to grant the countries of the +ommonwealth +aribbean independence0 she also
stipulated that their constitutions be written0 as opposed to the unwritten system0 which guides the United
Kingdom up until the present time. The fact that constitutions in the region are written and declare
themselves to be the supreme law of the particular =urisdiction0 it puts a limit on .arliamentary activities
that would otherwise have made the body supreme. The +onstitution has given the courts a duty to review
Acts of .arliament to see if its laws are consistent with the stipulations of the constitution and so it is the
+onstitution0 which is supreme0 and not .arliament.
;uandoo v The Attorne+ 9eneral of 9u+ana -1946/ 10 #8<8R 001 -6ritish 9uiana/:
Sto1y L.8. said: ;$efore the advent of a written constitution the legislature of colonial $ritish 4uiana was
supreme<its supremacy was not absolute in the sense in which the United Kingdom .arliament is
absolute. A colonial government2s legislation was sub=ect to the supervision of the @ecretary of @tate who
could withhold his assent if the proposed law infringed certain cannons of =ustice or policy. $ut within the
limits of these restrictions the legislature could introduce laws which were severe or even revolutionary<
?hen internal selfJgovernment was introduced0 and when independence was achieved0 all those
safeguards which had protected colonial peoples from oppression was engrafted into the +onstitution and
called fundamental rights. $y inserting them into the +onstitution0 the result which flowed was that
.arliament became sub=ect to the +onstitution0 but until it is altered no legislation can be enacted which
infringes a fundamental right.>
Co%"t#tut#o%al Su'r*acy
$ecause of constitutional supremacy0 parliament has to ma3e laws that conform to the constitution.
Under the constitution parliament has the power to ma3e laws for the peace0 order and good government
of that =urisdiction. This law ma3ing power is sub=ect to the constitution.
The second characteristic is that0 parliament in changing the constitution must conform to the
reHuirements for change that are set out in the constitution.
Co%"t#tut#o%al R"tr#ct#o%" o% !arl#a*%tary So3r#$%ty
.arliament has been given power by the +onstitution to ma3e laws for the ;peace0 order and good
government> of the land. This is the widest law ma3ing power a legislature may have. 'espite this
however0 this power0 the constitution says0 is ;sub=ect to the provisions of this constitution>. !t follows
then that# the law of the constitution is higher than any other law0 including law made by .arliament.
:oll+&ore v A89 [1967] 10 #<R 5 -read :hief ;usti,e =rasier/:
The appellants being members of the O#lf#l& Wor)r" Tra& U%#o% unsuccessfully moved the /igh
+ourt to declare as ultra vires the I%&u"tr#al Sta1#l#"at#o% Act =>?@0 which is declared in its preamble to
be an act to provide0 inter alia for the compulsory recognition by employers of Trade Unions and
organizations representative of a ma=ority of wor3ers and for the establishment of an e"peditious system
for the settlement of trade disputes for the settlement of trade disputes. $y "ct#o% A< a wor3er is
prohibited from ta3ing part in a stri3e in connection with any trade dispute unless the +#%#"tr of La1our
K
fails to refer the dispute to the I%&u"tr#al Court. The appellants in their motion alleged that a part
from being otherwise repugnant to the constitution0 certain provisions of the Act abrogated0 abridged or
infringed the right of free collective bargaining and the right to stri3e which it was contended are common
law rights and are accordingly encompassed in the fundamental freedom of association which is
specifically recognized and declared in Sct#o% = -B0 of the +onstitution and is protected by Sct#o% C.
Hl&D (!) that Sct#o% C of the Co%"t#tut#o% of Tr#%#&a& a%& To1a$o is an enactment limiting the power
of .arliament and is not a rule to construction# (!!) That the @upreme +ourt is the guardian of the
constitution# conseHuently it is not only within its competence but also its right and duty to ma3e binding
declarations0 if and whenever warranted0 that an enactment passed by .arliament is ultra vires and
therefore void# (!!!) that the right of free collective bargaining and the right to stri3e are not included in
the fundamental freedom of association recognized and declared but @ection 1 (=) of the +onstitution and
are conseHuently not protected as such under the provisions of Sct#o%" C a%& ? of the Co%"t#tut#o%.
!r Woo&#%$ C.8.D Sct#o% A? of the +onstitution provides that ;@ub=ect to the provision of this
+onstitution0 .arliament0 may ma3e laws for the peace0 order and good government of Trinidad and
Tobago>< (!t means) that the power and authority of .arliament to ma3e laws are sub=ect to its
provisions. .arliament may therefore be sovereign within the limits thereby set0 but if an whenever it
should see3 to ma3e any law such as the +onstitution forbids# it will be acting ultra vires.
/e further states: ;5o Huestion of the sovereignty of .arliament arises here. !t is simply a matter
of obeying the constitution. 5o one0 not even .arliament0 can disobey the +onstitution with impunity.
.arliament can amend the constitution only of the constitutional prescriptions are observed and providing
.arliament fulfills the reHuirements of the constitution its powers are sovereign and supreme. $ut if
.arliament fails or neglects to do so and thereby contravenes the e"pressed provisions of the +onstitution
any person who alleges that he has been0 or that he is0 or that he is li3ely to be pre=udiced by such
contravention may see3 recourse to the high court and pray its relief.
All the +onstitutions of the +ommonwealth +aribbean entrust to the courts0 or better still the duty0 to
e"amine activities underta3en by the @tate0 generally0 and decide whether those activities are inconsistent
with the +onstitution and conseHuently of no legal effect. This power in the courts to stri3e down
activities of the state for inconsistency with the +onstitution e"tends to reviewing Acts of .arliament for
such inconsistency. @o the courts may ad=udge an Act of .arliament void for repugnance with the
constitution.
Hinds v8 R [1976] 1 A$$ ER 353
!n said case0 the .rivy +ouncil0 Lor& D#'loc) dissenting0 reaffirmed the supremacy of the constitution by
defining .arliamentary limits in the law ma3ing process0 and stating that it was the duty of the court to
ensure that .arliament acted within its powers given by the +onstitution. /e said: ;<the &egislature0 in
the e"ercise of its power to ma3e laws for the ;peace0 order and government> of the state0 may provide
for the establishment of new courts and for the transfer to them of the whole or part of the =urisdiction
previously e"ercisable by an e"isting court. ?hat0 however0 is implicit in the very structure of the
+onstitution on the ?estminster model is that =udicial power0 however it be distributed from time to time
between various courts0 is to continue to be vested in the persons appointed to hold =udicial office in the
manner and in the terms laid down in the +hapter dealing with the udicature0 even though this is not
e"pressly stated in the constitution.>
!arl#a*%t #" 3"t& w#t4 t4 'owr to c4a%$ t4 'ro3#"#o%" of t4 Co%"t#tut#o%.
?hile the +onstitution is supreme and as such prevails over inconsistent Acts of .arliament0 still0
.arliament is empowered by the constitution to alter ;any of the provisions of this +onstitution>. $ut that
D
power is ;sub=ect to the provisions of the +onstitution.> .arliament0 in changing the constitution must
conform with the reHuirements for change that are set out in the constitution.
!n order to effect a constitutional amendment0 .arliaments in the +aribbean may have to observe
demanding procedures. The ordinary vote of the /ouses of .arliament in the bicameral legislatures0 or of
the /ouse of .arliament in the unicameral legislatures0 hardly does satisfy the reHuirements for
constitutional change.
The reHuired procedures vary in degrees of difficult0 and the degree of difficulty encountered in changing
provisions depends on which provision is being altered. These procedures for change are laid down by the
+onstitution itself under a scheme called ;entrenchment>.
!t is worthy to note that an or&#%ary *aBor#ty of those members of a /ouse of .arliament will not suffice
for the purpose of altering the provisions of the constitution.
.%tr%c4*%tD The scheme of entrenchment is the protecting of all or some of the provisions of a
constitution against change by the ordinary legislative process# that is0 the ma=ority. *ntrenchment means
that the passing of legislation for the alteration of some or all provisions of the constitution entails the
observance of reHuirements0 which do not have to be met for the passing of other legislation.
!n >a+ne v8 A898 -1940/ 37 #<R 440 it was stated: ;certain alterations in the constitution were certainly not
left to chance or an ordinary legislative enactment.
@ome entrenchment devices include special formulae and delaying procedures0 through special
parliamentary ma=orities and @enate vetoes0 to referendum reHuirements.
S'c#al For*ula
There are three 3inds of special formulae reHuired by +aribbean +onstitutions to be observed for their
alteration:
1. The S'c#al rc#tal or wor&" of %act*%t (needed in amaica).
A $ill presented to the 4overnor 4eneral or president for the assent would have a recital of
words of enactment stating that it is being enacted by the /ead of @tate0 by and with the
advice0 consent and authority of the /ouses or /ouse of .arliament0 as the case may be
(. A certain crt#f#cat#o% of &u co*'l#a%c with particular reHuirements for constitutional
change in several countries.
This accompanies a B#ll designed to change the constitution when it is being submitted for
assent. !t is submitted by the S'a)r of the Hou" of R'r"%tat#3"0 certifying that the
reHuisite parliamentary vote has been given to the $ill.
). Dclarat#o% of I%t%t.
This may be in the form of an Act0 which says in its terms that it intends to alter the
constitution.
Dlay#%$ !roc&ur"
This is a favorite entrenching device. Usually0 the delaying clause states that a $ill to change the
+onstitution or parts of it shall not be submitted for assent unless there has been some interval of not les
than 78 days between the introduction of the $ill in the *lected /ouse and the beginning of the second
reading or full debate on the $ill in that /ouse.
L
6ri!er+ :o&&issioner v8 Ranasin [1965] 0 #$R 1371:
Lor& !arc said: ;<5o Huestion of sovereignty arises. A .arliament does not cease to be sovereign
whenever its component members fail to produce among themselves a reHuisite ma=ority0 e.g.0 when in
the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend
the constitution there is only a bare ma=ority if the +onstitution reHuires something more. The minorities
are entitled under the +onstitution of +eylon to have no amendment of it0 which is not passed by a twoJ
thirds ma=ority. The limitation thus imposed on some lesser ma=ority of members does not limit the
sovereign powers of parliament itself which can always0 whenever it chooses0 pass the amendment with
the reHuisite ma=ority.>
The third aspect of constitutional supremacy relates to =udicial review A this refers to the power of the
court to review governmental action including legislation to determine its consistency with the
constitution and to declare it null and void to the e"tent of any inconsistency.
F#a&Bo states that the power of =udicial review may be defined as the =urisdiction of the superior courts
to review laws0 decisions0 acts and omissions of public authorities in order to ensure that they act within
their given powers. $roadly spea3ing0 it is the power of the courts to 3eep public authority within proper
bounds and legality.
The court has no =urisdiction to apply =udicial review. !ts =urisdiction is always invo3ed at the instance of
a person who is pre=udice or aggrieved by an act or omission of a public authority.
!n the +aribbean0 the written constitutions have directly and indirectly conferred the power of =udicial
review on the @upreme +ourt. Arguments contrary to this can no longer be countenanced. !n several
ways0 the courts are uniHuely placed to ad=udicate over the relationship between the citizen and the state0
basing them on the constitution0 legislation (where appropriate)0 the common law and their inherent
supervisory =urisdiction.
The remedy in =udicial review proceedings is not intended to detract from properly constituted authorities
the discretionary powers vested in them. .ut another way0 it is not permitted to substitute the courts as the
bodies ma3ing the decisions. ?hat is intended is that the relevant authorities use their powers in a proper
manner.
udicial review has given a tremendous boost to the machinery of =ustice as it has replaced the prerogative
orders of certiorari0 mandamus and prohibition0 and has also provided a simpler avenue for the individual
with a legitimate complaint against state action to have access to the courts.
T4 Ba"#" or Grou%&" of 8u&#c#al R3#w
18 T4 Su'r* Law Clau" A from this one may infer the power of the courts to engage in =udicial
review %ar!ur+ v8 %adison 5 ?) 1378 ustice 6arshall said ;it is emphatically the promise and
duty of the =udicial department to say what the law is. !f two laws conflict with each other0 the
court must determine which of these conflicting rules govern the case. This is the very essence of
=udicial duty.> /e went on to say essentially that where the constitution is written0 it is supreme
and it follows that the courts would have the power to determine consistency with the constitution.
@ee +ollymore.
08 T4 Doctr#% of t4 S'arat#o% of !owr" A this doctrine is implicit in +aribbean constitutions
and it presupposes that there are certain chec3s and balances on the powers of each branch of
government. @ince legislation is the product of the &egislature acting essentially at the direction
7
of cabinet0 which is the *"ecutive0 it follows that the only entity in which to vest such a power of
review would be an independent and impartial =udiciary.
38 Ou"tr Clau" ?ithin the constitution0 there are provisions 3now as 1ouster clause2 also 3nown as
1non=usticeable clauses2. ?hat these clauses do is oust the =urisdiction of the courts. They
e"pressly say that the =udiciary has no authority to review certain actions. The presence of these
ouster clauses which relate to certain e"ecutive actions implies that there is a general =urisdiction
for the courts to review the rest of the constitution.
58 Fu%&a*%tal R#$4t" !ro3#"#o% A even though the constitution does not confirm a general
e"press power to review legislation in relation to the fundamental rights provision0 there e"ists a
specific e"press provision conferring on the @upreme +ourt the power to entertain any claim that
there has been a contravention of the fundamental rights provision. @.(- and s. (K. &oo3 at
:oll+&ore and Hinds8
Re+es v8 The Queen [0770] 0 #$R 1735
&ord $ingham said: ;where an enacted law is said to be incompatible with a right protected by the
constitution the courts duty remains one of interpretation. The court has no license to read its own
predilections and moral values into the constitution.>
L#*#tat#o%" o% t4 R#$4t of R3#w
=. Locu" Sta%&# A in order to bring an action for =udicial review0 the claimant must show that he has
sufficient interest.
C. A%t#c#'atory R3#w A the court will not review a $ill (a proposed law) prior to its enactment.
The 6aha&as %ethodist v8 )+&onette [0777] 59 #<R 1 J !n this case0 the court held that it is the
right and duty of the courts to give supremacy to the constitution and that the courts should avoid
intervening in the parliamentary process unless it is necessary for the courts to give the protection
intended by the constitution. @o preJenactment relief could only be granted in e"ceptional
circumstances where such protection would only be effective if the court intervene at that early
stage.
A. Sa3#%$" Law Clau"" A they may operate to preclude the courts from ma3ing such a declaration
of inconsistency if they are given a strict interpretation. There are three types of savings law
clauses with different purpose:
+o&#f#cat#o% Clau"
The purpose of the modification clause is twofold:
1. To ensure that e"isting laws did not cease to have force on the coming into effect of the
new legal order and#
(. To provide a means by which e"isting laws could be modified or adopted to ensure their
conformity with the constitution and conseHuently preclude successful challenge on the
grounds of constitutional incompatibility.
2>> v8 %ollison [0773] 65 #<R 157@ 0 A: 511
!t was held that far from protecting e"isting laws from constitutional challenge0 this clause recognizes that
e"isting laws may be susceptible to constitutional challenge and accordingly confers power on the courts
to modify and adopt e"isting laws so as to bring them into conformity with the constitution.
18
9reenA6ro3n v8 R [077] 1 A: 55:
The .rivy +ouncil held that a proviso in a statute directing that a person who was convicted of murder but
was too young to be hanged0 should be detained during the 4overnor 4eneral2s pleasure0 was in breach of
the +onstitution of @t. Kitts and 5evis because such detention deprived a person of his liberty otherwise
than in e"ecution of an order or a sentence of a court.0 The .rivy +ouncil referred to the counterpart in @t.
+hristopher and 5evis of our section - (1) and held that it imposed a duty on the court ;to decide what
modifications reHuired to be made to have the offending provision in the proviso and to give effect to it in
its modified form0 not to stri3e down the proviso altogether. The .rivy +ouncil went on to hold that the
proviso should in effect be amended so as to substitute detention 1during the court2s pleasure2 for
detention 1during the 4overnor 4eneral2s pleasure2 and remitted the case to the +ourt of Appeal.
T4 G%ral Sa3#%$" Law Clau"
This is found in the $ill of %ights. !t saves laws that e"isted prior to the independence constitution. &i3e
the special saving law clause0 it has the potential to affect the fundamental rights and freedoms contained
in the constitution. +onseHuently0 the courts tend to construe it narrowly to limit its operation.
>inder v8 The Queen [0773] 1 A: 607:
A ,ase fro& the 6aha&as. the ,ase ,onfir&ed that 3hat the savins la3 ,lause is savin the t+pe of
punish&ent8 <n this ,ase. the a,tual la3 that authoriBed ,orporal punish&ent 3as passed after the
independen,e ,onstitution !ut !e,ause ,orporal punish&ent as a for& of punish&ent eCisted prior to the
,onstitution the+ said thatDThe %eyes case had to do with the mandatory death penalty and the issue of
whether it was inhumane and degrading# the real Huestion was whether this savings law clause prevented
the court from holding that the mandatory death penalty was unconstitutional. The .rivy +ouncil made a
distinction and stated that the special savings law clause protected laws that authorized a punishment but
not a law that mandated this punishment. 6andatory: compulsory# the courts have no discretion.
#atson v The Queen [0775] 65 #<R 051
The courts generally reduce the limitations of these savings law clauses by invo3ing the separation of
powers doctrine. This is because the @pecial and the 4eneral @avings &aw +lauses apply only to override
the fundamental rights provisions but they cannot be relied on to defeat a challenge based on the
separation of powers. This would undermine the supremacy of the constitution.
T4 S'c#al Sa3#%$" Law Clau"
This can be found in the fundamental rights provision and specifically relates to the right not to be
submitted to torture or inhumane conditions.
Re+es v8 The Queen [0770] 0 #$R 1735
The mandatory death penalty and the issue of whether it was inhumane and degrading. The issue was
whether this special savings law clause prevented the court from holding that the mandatory death penalty
11
was unconstitutional. The .rivy +ouncil made a distinction and stated that the special savings law clause
protected laws that authorize a punishment but not a law that mandated this punishment
The Queen v8 Huhes [0770] 0 A: 059
>inder v The Queen [0773] 1 A: 607
This case confirms that this clause is saving the type of punishment. !n this case the actual law that
authorized corporal punishment was passed after the independence constitution but because corporal
punishment as a punishment e"isted prior to independence0 then that type of punishment is saved.
Co%"Eu%c" of 8u&#c#al R3#w
1. !f a court reviews an act of parliament0 finds it to be inconsistent0 it will be null and void ad inicio
(from the beginning).
(. They could sever unconstitutional parts Hinds@ A9 v8 9ood3in [0771] 0 $R: 1
S.!ARATION OF !OW.RS
The *"ecutive function relates to the formulation of policy and the enforcement of laws.
The &egislative function is to ma3e laws.
The udicial function is to interpret the law.
The doctrine of the separation of powers is derived from the wor3s of 6ontesHuieu. /e was concerned
with the preservation of political liberty and felt that this could only be found when there is no abuse of
power. ;*"perience has shown that every man invested with power is liable to abuse it and carry his
authority as far as it will go.> To prevent such abuse he believed that one power should be a chec3 on the
other. From a practical perspective0 a complete separation of powers amongst the three independent
branches with no overlapping or coordination would bring 4overnment to a standstill. T4 &octr#% 4a"
1% #%tr'rt& to *a% t4at tyra%%y woul& 1 'r3%t& 1y t4 %o%-co%fr*%t of too *uc4
'owr o% a%y o% 'r"o% a%& 1y t4 c4c) of o% 'owr 1y a%ot4r.
Fiad=oe said that ;4overnment involves the blending of the respective powers of the principal organs of
the state since there can be no watertight compartments in government.>
Fiad=oe said that in today2s world0 the doctrine helps us to appreciate three things:
1. !t helps us to appreciate that of modern government0 there can only be shared powers among
separate and HuasiJautonomous yet interdependent state organs.
(. !t helps us to appreciate the truism that the system of government which we operate wor3s on the
assumption that there is a core function which can be classified as legislative0 e"ecutive and
=udicial and that those core functions belong to their respective branches or organs.
). !t helps us to recognize that government involves the blending of the respective powers of the
principal organs of @tate. *"perience shows that we cannot have waterJtight compartments in
government.
2odo v )tate [0771] 5 $R: 314
1(
+onstitutional separation of powers is not strict. !t embodies a system of chec3s and balances aimed at
preventing an over concentration of power in any one arm of government0 whilst at the same time0
anticipating that the unavoidable intrusion on one branch on another reHuires that power should not be so
diffuse as to unduly hinder government ta3ing timely measures in the public interest.
6en*a&in v8 %inister of <nfor&ation
ustice @aunders noted that in order for a democracy to operate effectively0 it2s necessary for a certain
comity to e"ist between the three branches of government. /e said ;each should respect the role and
function of the other0 the court is sub=ect to and must enforce laws passed by .arliament that are intra
vires the constitution. The *"ecutive should respect and obey the decisions of the court. !f this comity
does not e"ist0 then the wheels of democracy would not run smoothly.>
8u"t#c Sau%hree fundamental pillars0 the legislative0 e"ecutive and the =udicial. All must 3eep within the
bound of the constitution. The =udiciary has the tas3 of ensuring that legislative and e"ecutive action does
not stray outside the boundaries onto forbidden territory. !f that occurs and a citizen has a standing
complain0 the court declares the trespass and grants appropriate remedies.
?ithin their constitutional parameters the legislature and the e"ecutive are responsible for the enacting
and implementing of such policy measures as in their wisdom they consider to be most appropriate for the
people. The =udiciary has to be careful that it too does not stray from its function and usurp the authority
and the role reserved for the other two pillars.
<There is a fine line0 which the court must tread in these circumstances. In the one hand it must protect
the citizens and guarantee them rights and freedoms0 which the constitution proclaims. In the other hand0
the court should not intrude into the preserve of the other branches of the @tate.
For our democracy to operate effectively0 it is said that it is necessary that a certain comity should e"ist
between the three branches. *ach should respect the role and function of the other. The court is sub=ect to
and must enforce laws passed by .arliament that is intra vires the constitution. The e"ecutive should
respect and obey the decisions and accept the intimations of the court. !f this comity does not e"ist0 then
the wheels of democracy would not turn smoothly<>
S.!ARATION OF !OW.RS IN CARIBB.AN CONSTITUTIONS
&ord 'iploc3 in Hinds too3 it for granted that since +aribbean constitutions are based on the ?estminster
6odel0 then they embody the principles of separation of powers.
Ahnee v 2>> [1999] 0 #$R 1375
H.LD A based on these characteristics0 the constitution entrenches the principle of the separation of
powers between the *"ecutive0 &egislative and the udiciary. Under the constitution0 one branch of
government may not trespass upon the province of any other. The constitution gave to each arm of
government such powers as were deemed to be necessary in order to discharge the functions of the
*"ecutive0 &egislative and udiciary. The principle of the separation of powers is therefore apparent upon
the face of the constitution.
!n the +aribbean generally0 the principle of the separation of powers0 have received its principal
application by securing the independence of the courts from the control of the *"ecutive. !n the
1)
6oiler&a"ers :ase [1957] A: 044 0 Lor& S#**o%" said that the ;absolute independence of the =udiciary
is the bulwar3 of the constitution against encroachment0 whether by the legislature or the e"ecutive. To
vest in the same body e"ecutive and =udicial power0 is to remove a vital constitutional safeguard.>
$i+ane v8 R [1967] 1 A: 059:
$arnett in his boo3 :onstitutional $a3 of ;a&ai,a -1977/ said that although the amaican constitution
does not e"pressly incorporate the general doctrine0 of the separation of powers0 it is fundamentally
concerned with the protection of the principle of constitutionalism. This principle rests on the e"istence
of an independent and impartial =udiciary and on the protection of its powers and =urisdiction from
usurpation by the e"ecutive or legislature. This is derived from the basic principle of constitutional law
that the rights and obligations of persons ought to be determined by =udicial bodies0 which are not sub=ect
to the control or direction of the e"ecutive or legislature.
The cases can be bro3en down into situations where:
1. @ituations where the legislature is attempting to assume =udicial power. Dodo- all three orans of
the state have an interest in senten,in8 Liyanage- >riv+ :oun,il held that this t+pe of
leislature is un,onstitutional8 Ali v The Queen:
(. The transfer of =udicial power to nonJ=udicial bodies or persons. Hinds v R: !r Lor& D#'loc)D
?hat .arliament cannot do consistently with the separation of powers0 is to transfer form the
=udiciary to any e"ecutive body whose members are not appointed under +hapter G!! of the
+onstitution0 a discretion to determine the severity of punishment to be inflicted upon an
individual member of a class of offenders<the fact remains that a ma=ority of the members of the
review board are not Hualified by the constitution to e"ercise =udicial powers.
%ollison:
9reeneA6ro3n:
#atson v8 R [0775] 65 #<R 051:
Astaphan E :o8 $td v8 :ontroller of :usto&s [1996] 55 #<R 153:
The appellant was a 'ominican goods importer0 and paid the +omptroller of customs e"cess monies in
respect of the estimated duties on vehicles shipped into 'ominica. This occurred as a result of the
appellant2s an"iety to clear its goods at a time when the invoice and other necessary shipping documents
relating to the consignment had not arrived and as such0 he was unable to ma3e perfect entries of the
goods. An eventual claim for a refund of the e"cess was resisted on the grounds that the Cu"to*"
-Co%trol a%& +a%a$*%t0 Act =>>F r3. &%. .ermitted the forfeiture of the e"cess payment. !n his
appeal0 the appellant applied for 'eclarations and Irders predicated on the unconstitutionality and
invalidity of s. (D ())0 (,) and (K) of the +ustoms (+ontrol and 6anagement Act. The argument was that
the 1further sum2 under the Act purported to be either a ta" or duty or a penalty. !f it was a ta" or duty0
then s (D (,) is inconsistent with the basic principle of separation of powers implicit in the +onstitution. !f
the 1further sum2 purported to be a penalty0 s (D(,) either contravened s K of the +onstitution (which
protected the individual from compulsory acHuisition of his property without constitutional authority
therefore) or was inconsistent with the basic principle of separation of powers.
Flossaic + said: the power to impose ta"es and duties is inherently a legislative power constitutionally
vested in the &egislature. !f the 1further sum2 within s (D (,) of the Act has authorized the proper officer
to demand a ta" or a duty0 the 'ominica legislature has delegated or transferred its legislative power of
1,
ta"ation to the e"ecutive (that is0 the proper officer). The Huestion arises as to whether such delegation or
transfer of legislative power offends the basic principle of separation of powers.
! concede that the delegation of transfer of legislative power by the t with &egislature to the e"ecutive is
not per se inconsistent with the principle of separation of powers. There is no such inconsistency if the
legislature retains effective control over the e"ecutive in the latter2s e"ercise of the delegated or
transferred legislative power. @uch effective control may be retained by circumscribing the power or by
prescribing guidelines or a policy for the e"ercise of the power<The legislature reserves the right to
repeal its own legislation and to revo3e any legislative power which it has delegated or transferred to the
e"ecutive. To that e"tent0 the legislature retains ultimate control over the e"ecutive in relation to the
e"ercise by the e"ecutive of the delegated or transferred legislative power<
/e concluded that if the legislature delegates or transfers its legislative power to the e"ecutive and does
so without circumscribing guidelines or a policy for its e"istence0 the legislature should be deemed to
have surrendered or abdicated the power. !n that event0 the delegation or transfer of legislative power is
inconsistent with the basic principle of separation of powers.
). S#tuat#o% w4r t4r #" a tra%"fr of Bu&#c#al 'owr fro* t4 4#$4r Bu&#c#ary to t4 4#$4r
Bu&#c#ary. Hinds:
:o&&issioner of >oli,e v8 2avis:
The appellants were apparently convicted under the 'angerous 'rugs Act 17LL. They were given a
penalty of a M1880888 fine and five years2 imprisonment in a resident magistrates division. The main
Huestion was whether said court could lawfully e"ercise =urisdiction0 which was reserved by the
+onstitution to the @upreme +ourt. !r Lor& Goff < the =urisdiction so transferred constituted a
significant part of the =urisdiction that is characteristic of a @upreme +ourt0 having regard to the
ma"imum punishment that the inferior court that the inferior court was empowered to inflict.
6oiler&a"erFs :ase:
=arrell v A9:
!n said case0 the basis of the appellant2s complaint was that the !ndustrial +ourt Act 17DK violates the
constitutional reHuirements relating to the appointment of its members and their security of tenure. /is
counsel also contended that said Act gave the status of the /igh +ourt to the !ndustrial +ourt and created
a court of superior =urisdiction having =urisdiction normally vested in the /igh +ourt. !r !tr)#% 8AD
<the three 3inds of =urisdiction characteristic of a @upreme +ourt whose appellate =urisdiction is vested
in a separate court are: (1) unlimited original =urisdiction in all substantial civil cases# (() Unlimited
original =urisdiction in all serious criminal offences# and ()) supervisory =urisdiction over the proceedings
of inferior courts.
!t is clear that the +onstitution and +ourts Irder intended to reserve in Antigua a @upreme +ourt
e"ercising this characteristic =urisdiction. !f .arliament by an ordinary law could strip the @upreme +ourt
of this =urisdiction0 then what would be left would be a court of limited =urisdiction only to which the
label 1@upreme +ourt2 would be a false description# so too if all its =urisdiction were e"ercisable
concurrently by other courts composed of members of the lower =udiciary.
1-
,. S#tuat#o%" w4r t4 /cut#3 a""u*" l$#"lat#3 'owr. Astaphan & Co. Ltd v. Controller
of Customs [199! "# $%& 1"':
The Queen v8 Ho&e )e,retar+ eC parte =ire 6riades ?nion [1995] 0 #$R 565:
-. S#tuat#o%" w4r t4 Bu&#c#ary /rc#"" l$#"lat#3 or /cut#3 'owr".
)outh Afri,an Asso,iation of >ersonal <n*ur+ $a3+ers v8 Health [0771] 5 $R: 99:
!n said country0 the president whom the power to establish a @pecial !nvestigating Unit (@!U) was vested
was reHuired to appoint a =udge of the /igh +ourt as head of the unit. The said =udge was reHuired to
perform e"ecutive functions. The appellant contended that the appointment of a =udge as head of the @!U
was inconsistent with the constitution because it undermined the independence of the =udiciary and the
separation of powers that the constitution reHuires. The @outh African constitutional court upheld this
submission. !r C4a")al"o% !D The separation reHuired by the constitution between the legislature and
e"ecutive on the one hand0 and the courts on the other0 must be upheld otherwise the role of the courts as
an independent arbiter of issues involving the division of power between the various spheres of
government0 and the legality of legislative and e"ecutive action measured against the $ill of %ights0 and
other provisions of the constitution0 will be undermined. The constitution recognizes this and imposes a
positive obligation on the state to ensure that this is done. !t provides that courts are independent and
sub=ect only to the constitution and the law0 which they must apply impartially without fear0 favour or
pre=udice. 5o organ of state or other person may interfere with the functioning of the courts0 and all
organs of state0 through legislative and other measures0 must assist and protect the courts and to ensure
their independence0 impartiality0 dignity accessibility and effectiveness.
Rlat#o%"4#' Btw% S'arat#o% Of !owr" A%& 8u&#c#al R3#w
There is a view that powers0 which are separate0 should not interfere in each other2s functions and
therefore the review of legislation or administrative action by the =udiciary is impermissible as it would
amount to an encroachment on the principle of separation of powers. .articularly0 =udicial review of
legislation is most controversial because it amounts to a participation in a legislative function.
Alternatively0 =udicial review may be considered to be a part of the =udicial function itself. !n which case0
the principle would not be violated. Ultimately the Huestion is whether the chec3ing by one branch on
another is really participation in that others function and thus a violation of the principle or whether it
really fulfils the doctrine by carrying out the very purpose of separating and balancing the three branches
of government. !n this regard0 =udicial review may be said to be a part of such balancing and mutual
chec3ing and not a departure from a separation of powers theory.
Ahnee v 2>> [1999] 0 #$R 1375:
&ord @teyn dissenting said that from certain provisions of the +onstitution of 6auritius0 it could be
deduced that the +onstitution entrenches the principle of the separation of powers between the legislature0
the e"ecutive and the =udiciary. That under the +onstitution one branch of government may not trespass
upon the province of any other. That the constitution gave each arm of government such powers as were
deemed to be necessary in order to discharge the functions of a legislature0 an e"ecutive and a =udiciary.
That in order to enable the =udiciary to discharge its primary duty to maintain a fair and effective
administration of =ustice0 it follows that the =udiciary must as an integral part of its constitutional function
1K
have the power and the duty to enforce its orders and to protect the administration of =ustice against
attempts which are calculated to undermine it.
TH. RUL. OF LAW
The rule of law as stated by Aristotle ;the rule of law is preferable to the rule of any individual. This
captures the idea that the rulers as well as the ruled should be sub=ect to law. The traditional approach to
the rule of law is found in D#cy6" wor3.
D#cyD the rule of signifies three basic concepts:
1. The absence of arbitrary power A this means that no one is punishable e"cept for a distinct breach
of the law. 'icey contrasts the rule of law with every system of government based on the e"ercise
of persons of authority of wide arbitrary or discretionary powers.
(. *Huality before the law A this means that no man is above thmme law but that every man whatever
his ran3 or condition is sub=ect to the ordinary law of the realm.
). The protection of individual rights
From a +aribbean perspective0 Fiad=oe states that 1the rule of law has come to mean the e"ercise of state
power according to law and the sub=ugation (to defeat people or a country and rule them in a way which
allows them no freedom to defeat people or a country and rule them in a way which allows them no
freedom) of state power to the constitution. The phrase 1the rule of law2 is thus a useful compendium to
define the bundle of citizen2s rights or legitimate e"pectations to hold the state accountable for its
actions.2
The Universal 'eclaration on /uman %ights0 which was adopted by the U5 4eneral Assembly in 17,L0
refers to the rule of law and the 'eclaration of 'elhi0 in 17-70 best e"presses this doctrine. According to
this declaration0 the rule of law relates to the following:
The &egislature A the right to representative and responsible government.
The *"ecutive A the e"ecutive should be sub=ect to independent =udicial control.
The udiciary and the &egal .rofession A this reHuires the independence of the =udiciary and an
organized and autonomous legal profession.
The +riminal process A this involves a right to a fair trial0 certainty in the criminal law and other
rules of fairness including the absence of cruel punishments.
A citizen who is wronged should have a remedy against the state. lin3 between separations of
power and the rule of law
:o&&issioner of >oli,e v8 :)? [0771] 0 $R: 45
ustice +hinghengo admitted that at a philosophical level0 there are different schools of thought as to what
the rule of law encompasses. /owever0 at a practical level0 the rule of law is a norm or standard0 which
means that everyone must be sub=ect to a shared set of rules that are applied universally and evenJ
handedly. Also0 those who are affected by official action should be able to rely on the law to protect their
interests. The rule of law is therefore viewed as a rational or societal ideal.
1D
Rul of Law a%& t4 t/t of t4 Co%"t#tut#o%"
!n loo3ing at the rule of law and the te"t of the constitution the first thing to loo3 at is the preamble.
amaica does not have a preamble.
The use of the term 1rule of law2 in the +onstitution is not conclusive evidence that a =urisdiction is
governed by the rule of law. ?hat is important is whether the principles enshrined in the doctrine of the
rule of law are actually present in that constitution.
Su'r*acy of t4 co%"t#tut#o%D According to Al/#" this is consistent with the rule of law because it
would be difficult to reconcile the omnipotence of .arliament with the rule of law.
T4 B#ll of R#$4t"
+aribbean constitutions contain provision dealing with fundamental rights and freedoms. This means that
the law with clarity and certainty informs the individual of his rights and freedoms and what limitations
may be imposed on such liberties in the public interest. !t also provides individuals with the right of
redress for their breach.

$assalle v A9
The appellant was at all material times a lieutenant in the Trinidad and Tobago %egiment0 a branch of the
'efence Force established by the 'efence Act 17K( (hereafter called ;the principal Act>) which was
passed for the purposes of0 and came into operation a few days before0 this country2s attainment (on )1
August 17K() of political independence within the $ritish +ommonwealth. In ( une 17D80 the appellant
and other soldiers of the %egiment were charged0 inter alia0 with offences of mutiny contrary to the
provisions of the principal Act. In (D Ictober 17D80 the trial of the charges commenced before a courtJ
martial that had been convened on (1 Ictober. The courtJmartial was composed of five military officers
and a udgeJAdvocate belonging to the military Forces of various +ommonwealth countries. .rovision
for the composition of the courtJmartial had been made by the amending Act0 which came into operation
on 17 Ictober 17D8. $y originating motion heard before the /igh +ourt on (8 5ovember 17D80 the
appellant challenged the =urisdiction of the courtJmartial on (inter alia) the ground that the amending Act
was null and void and of no effect for the reason that0 being in conflict with ss 1 (a) and ( (e) and (f) of
the +onstitution0 it was not passed in the manner prescribed by s -.
$raithwaite 0 who upheld the constitutional validity of the Act0 dismissed the motion. !t is against this
decision that the present appeal has been brought. Hl& - that the reHuirement of due process was
adeHuately satisfied by the 'efence Act 17K(0 as amended by the 'efence (Amendment) Act 17D80 and
therefore no necessity arose for the provisions of s - of the +onstitution to be observed.
;The fundamental rights and freedoms guaranteed by the +onstitution do not owe
their e"istence to it. They are previously e"isting rights0 for the most part derived
from the common law0 the continuation of which is sought to be protected by the
+onstitution for the purpose of securing the rule of law in independent Trinidad and
Tobago. The effect of the due process clause is to entrench0 not the particular form of
legal procedure e"isting at the date of commencement of the +onstitution for
ad=udication of the rights of the individual0 but rather his fundamental right to such
1L
ad=udication by a fair0 independent and impartial tribunal in accordance with legal
principles that have come to be well understood in our democratic societyAin a word0
his right to =ustice as we 3now it> per !4#ll#'" 8A.
S'arat#o% of 'owr"
2>> v8 %ollison
;?hatever overlap there may be under constitutions on the ?estminster model between the e"ercise of
e"ecutive and legislative powers0 the separation between the e"ercise of =udicial powers on the one hand
and legislative and e"ecutive powers on the other is total or effectively so.> @uch separation0 based on the
rule of law0 was recently described by &ord @teyn as 1a characteristic feature of democracies2: R
-Anderson/ v8 )e,retar+ of )tate for the Ho&e 2epart&ent [0770] 3 #$R 14778 The appellant prisoner
was serving a mandatory life sentence for murder. $oth the trial =udge and the &ord +hief ustice had
recommended that he serve a minimum term of 1- years to meet the reHuirements of retribution and
general deterrence0 but the @ecretary of @tate set the tariff at (8 years. The prisoner could not be
considered by the .arole $oard for release on life licence until he had completed the tariff. The power to
release0 on licence0 an adult convicted of murder was itself e"ercisable0 on the $oard2s recommendation0
by the @ecretary of @tate under s (7
a
of the +rime (@entences) Act 177D. 5o such recommendation could
be made unless the @ecretary of @tate had referred the case to the $oard for its advice. The prisoner0 who
was nearing the end of the =udicially recommended tariff period0 applied for =udicial review of the
@ecretary of @tate2s decision to increase the tariff.
The 'ivisional +ourt dismissed the application0 and the +ourt of Appeal affirmed its decision. In his
subseHuent appeal to the /ouse of &ords0 the prisoner contended that the @ecretary of @tate should not fi"
the tariff for a convicted murderer since that power was incompatible with a person2s right0 under art
K(1)
b
of the *uropean +onvention for the .rotection of /uman %ights and Fundamental Freedoms 17-8
(as set out in @ch 1 to the /uman %ights Act 177L)0 to have his sentence imposed by an independent and
impartial tribunal. !n response0 the @ecretary of @tate contended that0 in fi"ing the tariff for a convicted
murderer0 he was administering a sentence already imposed0 not imposing a sentence. !n the event of the
prisoner2s submission being preferred0 a further issue arose as to the relief to which he was entitled. !n
particular0 their &ordships were reHuired to determine whether it was possible0 under s )
c
of the 177L Act0
to construe s (7 of the 177D Act in a manner that was compatible with the convention by reading it as
precluding participation by the @ecretary of @tate.
Hl& A -=0 The @ecretary of @tate should not play any part in fi"ing the tariff of a convicted murderer0
even if he did no more than confirm what the =udges had 18L7 recommended. The fi"ing of such a tariff
was a sentencing e"ercise0 involving an assessment of the Huantum of punishment that the convicted
murderer should undergo. The @ecretary of @tate2s role was ob=ectionable because he was not
independent of the e"ecutive. The complete functional separation of the =udiciary from the e"ecutive was
fundamental since the rule of law depended on it. !t followed that the @ecretary of @tate2s practice of
setting the tariff for convicted murderers was incompatible with art K(1). Accordingly0 the appeal would
be allowed0 and the issue of relief therefore arose.
-C0 !t was not possible to read s (7 of the 177D Act as precluding participation by the @ecretary of
@tate. A conclusion to the contrary would not be =udicial interpretation but =udicial vandalism0 giving s (7
an effect Huite different from that which .arliament had intended and going well beyond any
interpretative process sanctioned by s ) of the 177L Act. !t followed in the instant case that the only relief
that the prisoner could obtain was a declaration of incompatibility. Accordingly0 their &ordships would
17
declare that s (7 of the 177D Act was incompatible with the right0 under art K of the convention0 to have a
sentence imposed by an independent and impartial tribunal in that the @ecretary of @tate was acting so as
to give effect to s (7 when he himself decided on the minimum period that had to be served by a
mandatory life sentence prisoner before he was considered for release on life licence.
@eparation of powers is consistent with the rule of law since it helps to prevent the assertion of arbitrary
power through chec3s and balances on each arm of government.
Du !roc"" Clau"
$e3is v8 A9 of ;a&ai,a
!t was said that you couldn2t have protection of the law unless you have due process of the law. The two
terms are synonymous. The due protection of the law guaranteed in s.1) of the amaican constitution0
and so the people are endowed with constitutional protection to the concept of procedural fairness.
Hl& J 'ismissing the crossJappeal (&ord /offmann dissenting)0 that the right to the protection of the law
under section 1)(a) of the +onstitution and at common law was in effect the same as an entitlement to due
process of law# that0 although ratified but unincorporated treaties did not ordinarily create rights for
individuals enforceable in domestic courts0 when the state acceded to such treaties and allowed
individuals to petition international human rights bodies the protection of the law conferred by section 1)
entitled a petitioner to complete that procedure and to obtain the reports of such bodies for consideration
by the .+ before determination of the application for mercy0 and to a stay of e"ecution until those
reports had been received and considered# that where a petition had been lodged with such a body
e"ecution of a sentence of death conseHuent upon a decision of the .+ made without consideration of
that bodyNs report would therefore be unlawful# and that0 since it was reasonable to allow 1L months for
applications to international human rights bodies0 the lesser time limits imposed by the 4overnor 4eneral
in the instructions contravened the rules of natural =ustice and were unlawful
!n Tho&as v8 6aptiste( Lor& T4o*a" said due process of law is a compendious e"pression. !t invo3es the
concept of the rule of law itself and a universally accepted<. fairness. The due process clause must be
broadly interpreted and that the right to be allowed to complete a current legal process without having it
rendered nugatory by e"ecutive action before it is completed0 is part of the fundamental concept of due
process. &oo3 at s.1) of the constitution.
Fact"
The appli,ants 3ere ,hared 3ith &urder and spent a nu&!er of +ears in prison after !ein senten,ed to
death8 Hl& - Allowing the appeals in part (&ord 4off of +hieveley and &ord /obhouse of ?oodborough
dissenting)0 that due process of law in section ,(a) of the +onstitution incorporated the concept of
procedural fairness not only in the trial but also in the appellate process# that all litigants0 including
condemned men0 had the general common law right0 affirmed by section ,(a)0 not to have the result of
any pending appellate or other legal process rendered nugatory by e"ecutive action before completion#
that0 although the terms of the American +onvention on /uman %ights had not been incorporated into
domestic legislation0 by ratifying a treaty which provided for individual access to the commission the
government had made that process for the time being part of the domestic criminal =ustice system so that
the due process provision in section ,(a) applied# that even if the government were entitled to curtail such
rights of access or to prescribe conditions for their e"ercise for the future0 section ,(a) prevented the
government from doing so retrospectively so as to affect e"isting applications0 and0 although the
(8
applicantsN petitions had been lodged after publication of the instructions0 the invalidity of the instructions
prevented the government from relying on them to =ustify carrying out the death sentences passed on the
applicants before petitions were determined0 and to do so would infringe the right to due process
guaranteed by section ,(a)# and that0 accordingly0 their e"ecutions would be stayed until the current
petitions to the commission had been determined and the rulings of the commission and the !nterJ
American +ourt of /uman %ights had been considered by the relevant authorities of Trinidad and
Tobago.
*ven if a legitimate e"pectation based on the provisions of a treaty not incorporated into domestic law
could give procedural protection0 it could not give substantive protection unless it were supported by
other constitutional guarantees0 nor could it create binding rules of law.
I%&'%&%t 8u&#c#aryD
This is an indispensable preJreHuisite of a free society under the rule of law. +aribbean constitutions
contain provisions0 which support the independence of the =udiciary including those relating to the
appointment and removal of =udges0 the security of their tenure and the scope of their =urisdiction.
)he &ule of La* as +ertainty
O3rrul#%$ 'rc&%tD
&aw cannot rule us unless the law is fairly stable and certain. This means that we must be able to feel
secure that the law will not change arbitrarily and without =ust cause. This brings into scrutiny the rules
governing the overruling of cases. The traditional approach puts great stoc3 on avoiding the frustration of
e"pectations based upon the state of law at a particular point in time. $ut the interests of =ustice will
always trump the certainty of stable precedent.
The ma=ority in the .+ in $e3is v8 A9 had said that the need for legal certainty0 demands that they should
be very reluctant to depart from recent0 fully reasoned decisions unless there are strong grounds to do so.
$ut no less should they be prepared to do so if they are satisfied that the earlier cases adopted a wrong
approach. !n such a case rigid adherence to the rule of stare decisis is not =ustified. Under the concept of
rule of law as certainty0 Lor& Hoff*a% in $e3is v8 A9 said that if the /& or .+ could overrule precedent0
it would undermine the rule of law. ;! entirely accept that the $oard is not0 as a matter of law0 bound by
its previous decisions< $ut the power of final interpretation of a constitution must be handled with care.
!f the $oard feels able to depart from a previous decision simply because its members on a given occasion
have a Odoctrinal disposition to come out differentlyO0 the rule of law itself will be damaged and there will
be no stability in the administration of =ustice in the +aribbean.> Lor& Hoff*a% said that there should be
certain guidelines that should be followed when a court decides to overrule a case.
9a$u%""
The principle of legality reHuires that an offence against the criminal law must be defined with sufficient
clarity to enable a person to =udge whether his acts or omissions will fall within it and render him liable to
prosecution. &egislation0 which is hopelessly vague0 must be struc3 down as unconstitutional. /owever0
(1
the fact that a law is e"pressed in broad terms does not mean that it must be held to have failed to reach
the reHuired standard. Lor& B#%$4a* of Cor%4#ll in % v K said:
;The rule of law is not well served if a crime is defined in terms wide enough to
cover conduct which is not regarded as criminal and it is then left to the prosecuting
authorities to e"ercise a blan3et discretion not to prosecute to avoid in=ustice.>
;There is to be implied in Pthe above sectionQ the reHuirement that in criminal matters
any law must be formulated with sufficient precision to enable the citizen to regulate
his conduct. @o the principle of legality applies0 legislation0 which is hopelessly
vague must be struc3 down as unconstitutional. $ut the precision which is needed to
avoid that result will necessarily vary according to the sub=ect matter.> ()a!apathee v
)tate/@
)a!apathee v )tate
Following the arrest of the appellant2s coJdefendant a search was e"ecuted at the appellant2s house. A
pac3age was found which contained )- sealed plastic sachets containing heroin and -8 empty plastic
bags. The appellant was charged with various offences under the 'angerous 'rugs Act 17LK in respect of
which it was alleged that0 pursuant to section )L0 it could be reasonably inferred that he had been
traffic3ing drugs when he committed the offences. The coJdefendant pleaded guilty to two offences of
importing drugs into 6auritius. The appellant was tried by a =udge without a =ury and did not give
evidence in his own defence. /e was convicted of 3nowingly having in his possession )7- grams of
heroin and wilfully offering to buy heroin. ?ithout giving the appellant any further opportunity to give
any evidence the =udge went on to ma3e a finding that the appellant had been engaged in traffic3ing drugs
when he committed the offences.
The appellant2s appeal to the +ourt of Appeal was dismissed and he appealed to the .rivy +ouncil against
the =udges finding that he had been engaged in traffic3ing. /eld0 dismissing the appeal A (i) there was
nothing in the language of section )L(() to indicate a parliamentary intention to depart from the ordinary
common law rule that where direct evidence was not evident to prove any fact the court could not find
that fact established by reasonable inference from other facts which had been proved: that the standard of
proof for the inference remained proof beyond a reasonable doubt# the trial =udge and the +ourt of Appeal
had applied the correct standard of proof and had been satisfied beyond a reasonable doubt that the
appellant had been engaged in traffic3ing.
.er Lor& Ho' of Cra#$4a& ;The essence of the complaint is that the statute has failed to define with
sufficient clarity the transactions that fall within0 and those that fall outside0 the ordinary meaning of the
e"pression Ptraffic3ingQ which the section has used to describe the nature of the activity. The principle of
legality reHuires that an offence against the criminal law must be defined with sufficient clarity to enable
a person to =udge whether his acts or omissions will fall within it and render him liable to prosecution on
the ground that they are criminal<The fact that a law is e"pressed in broad terms does not mean that it
must be held to have failed to reach the reHuired standard<the +ourt of Appeal put the matter correctly in
its =udgement in the present case when it said: 1As we have already adverted to0 the term 1traffic3ing2
cannot be defined with any degree of precision. The multifarious forms which traffic3ing can ta3e can be
measured only by the degree of human ingenuity0 which0 as yet0 is unfathomable. 5o e"haustive list of
instances of traffic3ing can be enumerated or defined0 so the legislator has left it to the good sense of the
courts to decide what amounts to traffic3ing on a given set of facts.2 >

((
?here a law creating a criminal offence is vague the citizen will not be able to 3now e"actly what
conduct is prohibited until the =udge trying the case interprets the law. The rule of law reHuires obedience
to the law but this necessarily implies that the law is clear.
Rtroact#3#ty
At the time you commit an act it must have been a criminal offence. $arbados s. 1L(,) states:
No 'r"o% "4all 1 4l& to 1 $u#lty of a cr#*#%al off%c of a%y act or o*#""#o%
t4at &#& %otG at t4 t#* #t too) 'lacG co%"t#tut "uc4 a% off%cG a%& %o '%alty
"4all 1 #*'o"& for a%y cr#*#%al off%c t4at #" *or "3r #% &$r or %atur
t4a% t4 *o"t "3r '%alty t4at *#$4t 4a3 1% #*'o"& for t4at off%c at
t4 t#* w4% #t wa" co**#tt&.

o A retroactive law is one which ma3es conduct unlawful from the point in time at which it
occurred even though at that time the conduct was lawful# or imposes or increases the penalty for
such conduct.
o The provision in $arbados prohibiting retroactive laws is typical of the type of provision found in
the constitutions of the +ommonwealth +aribbean. !n countries0 such as TT0 where a similar
provision does not appear in the constitution0 it is not disputed that he prohibition against
retroactive laws will be found to be comprised in the right to due process of the law or the right to
the protection of the law.
o %etroactive laws infringe the rule of law doctrine because0 if permitted0 citizens would never
3now whether the conduct they engage in today which is not against the law0 may tomorrow be
determined to be unlawful0 thereby e"posing them to penalties for conduct which they could not
have 3nown was going to be made unlawful. !t is considered grossly unfair to sub=ect people to
penalties in such circumstances.
>ierson v )e,retar+ of )tate for the Ho&e 2epart&ent
!n the early hours of 17 @eptember 17L, at his family2s home0 a small farmhouse in 5orth ?ales where he
lived with his mother and father0 he 3illed both his parents by shooting them more than once at close
range with a 1(Jbore shotgun which was 3ept in the house. The appellant himself called the police. At
first he made admissions consistent with his guilt# but at his trial he said that he had no memory of the
events in Huestion. In L uly 17L- he was convicted of both murders. ?hy he 3illed his parents was
totally une"plained. The =udge imposed the mandatory sentence of life imprisonment. !n accordance
with the usual practice0 he wrote in confidence to the /ome @ecretary0 describing the crimes as horrifying
but also mystifying. /e e"pressed the opinion that0 failing some dramatic development or discovery0
retribution and deterrence in the appellant2s case would reHuire a substantially longer than average period
of custody to be served. The present appeal is concerned with the period of time that the appellant is
reHuired to spend in prison to meet the reHuirements of retribution and deterrence0 before the possibility
of his release on licence can be considered.
Hl& J (Lor& Brow%-W#l)#%"o% a%& Lor& Lloy& of Brw#c) dissenting) The /ome @ecretary had not
been entitled to set the appellant2s tariff period at (8 years once it was shown that his predecessor in
office had proceeded on the wrong basis by ta3ing into account aggravating characteristics (in particular
premeditation) when originally fi"ing the tariff0 since by doing so he had not merely left the tariff period
unchanged but had in effect increased the penal element in the appellant2s sentence. That was beyond the
()
/ome @ecretary2s powers under s )- of the 1771 Act because (per Lor& Sty% a%& Lor& Ho' of
Cra#$4a&) his role in fi"ing the tariff period involved a decision on punishment analogous to the =udicial
sentencing function and he was bound by considerations of substantive fairness to observe the same
common law rule as =udges that a lawful sentence0 once pronounced0 could not be retrospectively
increased. !n setting or reviewing a tariff period0 the /ome @ecretary was (per Lor& Sty%) ma3ing a
decision about the punishment of the convicted man and was reHuired to act according to the principle of
legality under which it was presumed that he would not e"ercise the discretion conferred on him by
.arliament by increasing a tariff period which was already fi"ed and thereby retrospectively increasing a
lawfully pronounced sentence# and (per Lor& Ho' of Cra#$4a&) it was not open to him to increase the
minimum period simply because he disagreed with the view formed by his predecessor about the
appropriate level of punishment and decided0 on further reflection0 that the punishment was inadeHuate.
W#& &#"crt#o%ary 'owr"
&egislation sometimes best public authorities with powers passed in broad language. $ecause of this0
wide discretionary powers have been held to be reviewable by the courts which reHuire that such powers
be e"ercise in accordance with the intent and for the purposes of the law which vests the power in the
public official.
o @ometimes a law may vest public authorities with powers cast in broad language such as 1if it
appears to the 6inister that so R so20 or 1if the 6inister is satisfied that>. !f interpreted literally0
e"pressions such as these could be said to give public authorities to act on a whim or to give vent
to personal preferences or pre=udices. !f this were so0 then the law would be administered in an
arbitrary fashion and would depend upon the predilections of the particular public officer who
happens to be the repository of the power at the time. .eople would never be certain as to e"actly
what are reHuired of them or as to what there entitlements might be.
o For this reason0 wide discretionary powers have been held to be reviewable by the courts0 which
reHuire that such powers be e"ercised in accordance with the intent and for the purposes of the
law0 which vets the power in the public official.
Re %anpo3er :itiBenFs Asso,iation per +rane A argued that the courts could not interfere with the
e"ercise of his discretion. /owever the court stated that to accept such proposition would lead to serious
inroad on the rule of law in a democratic society. ;The rule of law in a democratic society provides that a
discretion is not to be e"ercised in a capricious and arbitrary manner0 but in a disciplined and responsible
way.>
Gliver Ash3orth -Holdins/ $td v 6allard -Hent/ $td (
R v Ho&e )e,retar+. eC parte Iena!les
)he &ule of La* as a legal system that is fair and a++essi,le
!roc&ural fa#r%""
(,
The right to be heard and the right to an unbiased =udge are indispensable to the rule of law. &aw
determined by a biased =udge is not rule by law at all but rule in accordance with the =udge2s pre=udices.
And law determined without hearing the other side is law0 which represents only half of the picture and so
is incomplete and is based on an unfair foundation.
Tho&as v8 6aptiste - Lor& +#llt in loo3ing at the concept of procedural fairness stated that in this case
because there was a breach of the rules of fairness and of natural =ustice the appellants did not en=oy the
protection of the law.
;aroo v A9 of TT
)hah E $asalle v A9
Rul of Law *a%#%$ acc"" to t4 Bu"t#c "y"t*
!n constitutional democracies under the rule of law the courts have assumed =urisdiction to hear and
determine all disputes of a =usticiable nature. &oo3 at 9air+ in terms of the types of remedies that are
available.
$e3is v A9 of ;a&ai,a
9air+ v A9
;ohnson v 9ore #ood E ,o -a fir&/
R v lord :han,ellor. eC parte $ihtfoot
R*&#"
Huddus v :hief :onsta!le [0771] 0 #$R 1749:
The plaintiff reported to the police that property had been stolen from his flat. A police constable assured
him that the matter would be investigated0 but subseHuently the constable forged the plaintiff2s signature
on a statement purporting to be a withdrawal by the plaintiff of his complaint. The investigation
accordingly ceased. The plaintiff brought an action against the defendant chief officer of police on the
ground of his vicarious liability for the constable2s misfeasance in public office. /e claimed damages0
aggravated damages and e"emplary damages. The defendant0 who admitted the forgery of the constable
and that it amounted to a misfeasance of public office0 applied for the plaintiff2s claim of e"emplary
damages to be struc3 out on the grounds that e"emplary damages were not recoverable for the tort of
misfeasance in public office. The recorder so ordered# the +ourt of Appeal by a ma=ority dismissed an
appeal by the plaintiff.
Hl&0 allowing the appeal0 Lor& Hutto% said ;!n my opinion the power to award e"emplary damages in
such cases serves to uphold the rule of law because it ma3es it clear that the courts will not tolerate such
conduct. !t serves to deter such actions in future as such awards will bring home to officers in command
of individual units that discipline must be maintained at all times.>
R v Horseferr+ Road %aistrateFs :ourt. EC p8 6ennett [1993] 3 #$R 97:
The defendant0 a citizen of 5ew Sealand who was alleged to have committed criminal offences in
*ngland0 was traced to @outh Africa by the *nglish police and forcibly returned to *ngland. There was
(-
no e"tradition treaty between the two countries0 and although special arrangements could be made in a
particular case under section 1- of the *"tradition Act 17L7 no such proceedings were ta3en. The
defendant claimed he had been 3idnapped from the %epublic of @outh Africa as a result of collusion
between the @outh African and $ritish police and returned to *ngland0 where he was arrested and brought
before a magistrate2s court to be committed to the +rown +ourt for trial. The defendant sought an
ad=ournment to enable him to challenge the court2s =urisdiction. The application was refused and he was
committed for trial. /e sought =udicial review of the magistrate2s decision.
The 'ivisional +ourt of the Bueen2s $ench0 refusing the application0 held that the *nglish court had no
power to inHuire into the circumstances under which a person appearing before it had been brought within
the =urisdiction. In appeal by the defendant0 it was held per Lor& Br#&$ of Harw#c4 ;There is0 ! thin30
no principle more basic to any proper system of law than the maintenance of the rule of law itself. ?hen
it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled
to do so by participating in violations of international law and of the laws of another state in order to
secure the presence of the accused within the territorial =urisdiction of the court0 ! thin3 that the respect
for the rule of law demands that the court ta3e cognisance of that circumstance<!f a resident in another
country is properly e"tradited here0 the time when the prosecution commences is the time when the
authorities here set the e"tradition process in motion. $y parity of reasoning0 if the authorities0 instead of
proceeding by way of e"tradition0 having resorted to abduction that is the effective commencement of the
prosecution process and is the illegal foundation on which it rests.> .er Lor& Lowry ;<the court0 in
order to protect its own process from being degraded and misused0 must have the power to stay
proceedings which have come before it and have only been made possible by acts which offend the
court2s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable
foundation for the e"ercise of =urisdiction over the suspect taint the proposed trial and0 if tolerated0 will
mean that the court2s process has been abused.>
Rul of Law a" t4 "u'r*acy of law o3r $o3r%*%t
No o% #" a1o3 t4 law
;&itigation between the citizen and the @tate has always been considered problematic. !n constitutional
democracies under the rule of law however0 the courts have assumed =urisdiction to hear and determine all
disputes of a =usticiable nature. The principle of eHuality before the law0 where every man whatever his
ran3 or condition is sub=ect to the ordinary law0 must result in every official from the .rime 6inister
down to a =unior cler3 having the same responsibility for every act done without lawful =ustification0 as
any other citizen.> .er Byro% C8 9air+ v A9 -1999/ 59 #<R 175.179@
./cut#3
Ho,ho+ v8 J?9E
!n e"ercise of the powers conferred on him by s ( of the +ommission of !nHuiry Irdinance +ap D0 5o (0
the 44 of TRT appointed a commission of inHuiry to inHuire into certain matters set forth in the 4azette
*"traordinary published on (K @eptember 17K). An action was brought by the claimants against the
defendant# the appointment was ultra vires and of no effect. !t was argued that
1. That as the Bueen2s representative in this country he was immune from suit0 and that the
court had no =urisdiction over him and
(K
(. That the court had no =urisdiction to ma3e the declarations sought for the reason that I (K0
r - of %@+ was not binding on the +rown.
!t was held that the courts of the country are the Bueen2s +ourts and not that of her representatives and as
her immunity from suits in her courts was essentially personal0 the appellants as her representative could
lay no claim to such privilege. ?hen Huestions arise as to the Huality and validity of an act done by the
appellant0 on the assumption that it is within his powers as 440 it is within the province of the courts to
determine its true character and his competence to do it. The appellant as the person designated by the
Irdinance to e"ercise the statutory power to appoint a commission of inHuiry was a proper defendant to
answer the challenge that the appointment made by him was ultra vires and accordingly null and void.
Woo&#%$ C8 said 1that the @overeign2s immunity is essentially personal there ought to be no doubt. The
courts are the Bueen2s# they are not the courts of her representative0 which the 44 is here.
: G #illia&s v8 6la,"&an
The courts reviewed a decision of cabinet. The +abinet was acting under a specific statutory provision#
thus they could review their actions under that provision. The e"ecutive is not immune from review. The
applicant submitted tender which was lower than that of the only other tenderer. The special tenders
committee recommended acceptance of the applicant2s tender. The matter was considered by cabinet and
it decided under rule 1,L of the %ules of 17D1 to award the contract to the other tenderer0 recommended
by the 6inister of Transport and ?or3s0 who was a member of the cabinet. The applicant applied for
=udicial review. In appeal to the .rivy +ouncil it was held that J
1. Allowing the appeal against the A40 that in deciding to accept the tender of the other tenderer the
cabinet had not been e"ercising its prerogative power but the specific statutory function conferred
on it by rule 1,L of the %ules of 17D1# that the e"ercise of that function was an 1administrative act2
by the cabinet within s ( of the Administrative ustice Act since even if not collectively the act of
a minister it was the act of an 1other authority of the 4overnment of $arbados2 for the purposes of
that section and was therefore sub=ect to =udicial review to the same e"tent and on the same
grounds as it would have been had it been conferred on a minister instead of on the cabinet.
8u&#c#ary
%ahara* v8 A9 of TT - the courts reviewed the actions of a =udge.
Rees v :rane:
The respondent was a =udge of the /igh +ourt of TT and held office sub=ect to the fundamental right to
the protection of the law recognized by s, (b) of the +onstitution of the %epublic of TT and he could only
be removed from office for inability to perform whether from infirmity of mind or body or any other
cause or for misbehaviour in accordance with the constitution. After receiving complaints about the
respondent the + of TT decided not to include him in the roster of =udges who were to sit in court for the
following term. The +hief ustice then instigated proceedings for the respondent to be removed from
office without the respondent being aware of such proceedings. The respondent applied for =udicial
review.
The +ourt of Appeal of TT allowed the appeal by a ma=ority and Huashed the +hief ustice2s decision to
e"clude the respondent from the roster. The .rivy +ouncil ruled that:
(D
1. Although the + of TT as head of =udicial administration there had power to organise the
procedures and sittings of the courts0 including arranging that for a temporary period a particular
=udge did not sit in a court0 a =udge may only be suspended or removed from office in accordance
with the procedure prescribed by s1)D# that the decision of the + to e"clude the defendant from
the roster0 with no indication as to when he would sit in court again constituted an indefinite
suspension which he had no power to impose and which could not be corrected retrospectively by
the order of suspension made by the .resident under s.1)D(,).
(. The commission had not treated the respondent fairly in failing to inform him at that stage of the
allegations made against him or to give him a chance to reply to them in such a way as was
appropriate0 albeit not necessarily by an oral hearing# and that accordingly the commission had
acted in breach of the principles of natural =ustice.
L$#"latur
Hinds v R [1977] A: 195
:oll+&ore v A9 -1967/ 10 #<R 5:
Ou"tr Clau""
There is an argument that they are inconsistent with the rule of law.
Re Alva 6ain -unreported/ H:. TET -no 3067 of 1947/ AH= 105:
The case law demonstrates that no matter the high office held by anyone they are bound to comply with
the law. /owever0 there are some instances where the law itself immunizes public authorities from
supervision by the courts. ?hen courts abide by ouster clauses0 is this an e"ception to the rule of law or
an application of the doctrineT
T4 l$al#ty of "tat act#o%
$iversdie v Anderson [1951] 3 All ER 334. 361:
R v Health )e,retar+. eCp8 <&perial To!a,,o $td [0771] 1 #$R 107. 150:
R v Ho&e )e,retar+. eCp8 %uho+a*i [1991] 3 #$R 550. 559:
An important distinguishing feature of our legal system is the reHuirement that the onus is on public
authorities to demonstrate the legality of their actions. The practical conseHuence of this assumption is
that in any case0 for e"ample0 where a person2s liberty is ta3en away0 the onus is on the state to establish
the legal authority by which its agents have acted. !llegality is assumed until the contrary is proved.
Rul of Law a" .Eual#ty
.veryone is entitled to the prote+tion of the la*
I%"urrct#o%#"t"
*ven though they act outside the law0 they are still entitled to eHuality in the law as no one is below the
law.
(L
)hah E $asalle v A9 -1970/ 07 #<R 361 at pp 576A577:
Gn the 01 April 1977. a &utin+ o,,urred in the 1
st
6attalion of the TT Rei&ent at Teteron 6a+ 3here the
ar&+ en,a&p&ent 3as esta!lished8 <t 3as oranised !+ $ts $asalle and )hah 3ith the assistan,e of a $t
6aBie@ and a nu&!er of *unior nonA,o&&issioned offi,ers and privates parti,ipated8 The senior offi,er in
,o&&and at Teteron 3as i&prisoned and the &utineers too" ,ontrol of the arsenal and the Teteron ,a&p8
Jeotiation !et3een the representatives of the overn&ent and representatives of the &utineers too"
pla,e8 The dissidents proposed the reappoint&ent of $t :olonel )errette as the ,o&&andin offi,er of the
rei&ent8 Gn April 03. $t :ol )errette 3as dispat,hed as an e&issar+ of the >ri&e %inister to visit the
,a&p 3ith a vie3 to restorin la3 and order8 2urin the niht he se,ured the release of %a*or
:hristopher and other offi,ers of ran" as 3ell as the ,ivilian personnel 3ho had !een detained !+ the
&utineers8 $t :ol )errette 3as pro&oted to the ran" of :olonel the follo3in da+ and appointed Gffi,er
:o&&andin the Rei&ent8 At the ,ourtA&artial the t3o lieutenants and a private pleaded the issue of
,ondonation in !ar of trial !+ virtue of s100 of the 2efen,e A,t -0/ -d/ an offen+e shall ,e deemed to
have ,een +ondoned ,y the +ommanding offi+er of a person alleged to have +ommitted the offen+e if(
and only if( that offi+er or any offi+er authorised ,y him to a+t in relation to the alleged offen+e has
*ith /no*ledge of all relevant +ir+umstan+es informed him that he *ill not ,e +harged here*ith01The
alleations in support of the plea of ,ondonation 3ere that it 3as throuh the a,tions of the lieutenants
that $t :ol )errette 3as provided 3ith the opportunit+ of se,urin his reAappoint&ent to the rei&ent and
havin !een full infor&ed of all the fa,ts and ,ir,u&stan,es of the &utin+ he ,ondoned it !+ -i/ pro&otin
the& to the ran" of ,o&pan+ ,o&&ander@ -ii/ tellin the& he 3ould not ,hare the& for an+ &ilitar+
offen,e@ and -iii/ tellin the& that he 3ould not ta"e an+ dis,iplinar+ a,tion aainst the&8 The pleas
3ere re*e,ted and the appellants 3ere ,onvi,ted of &utin+ and other offen,es and senten,ed to ter&s of
i&prison&ent8
In appeal it was submitted inter alia0 that the trial of the plea of condonation was unfair and that a
substantial miscarriage of =ustice had occurred. Hl& - Fraser A said ;<in military affairs the law0 as it
now stands0 gives a commanding officer power to condone military offences0 including mutiny0 and such
condonation is a bar to trial by a courtJmartial. The hearing of the plea of condonation was not a fair
hearing. The principles of natural =ustice were cast aside for no apparent reason# and the Act does not
provide the alternative of a reJtrial. ?here there is a substantial miscarriage of =ustice the Act demand
that the conviction be Huashed<the +onstitution of this country recognises that men and institutions
remain free only when freedom is founded upon respect for moral and spiritual values and for the rule of
law. As a =udge of this court0 ! am in duty bound to uphold the rule of law at all times.> Appeal allowed.

$ennoC >hillips v 2>> ->:/ [1990] 0 #$R 011:
'uring an insurrection in Trinidad by a group of which the 11, applicants were members0 the .rime
6inister0 certain 6embers of .arliament and other persons were held captive. !n order to secure their
release the Acting .resident granted a pardon in the form of a general amnesty to all those involved in
acts of insurrection. The captives were eventually released and the applicants surrendered. They were
arrested and detained in custody. They were arrested and detained in custody. They were charged with
treason0 murder and other offences alleged to have been committed while they were involved in the
insurrection. They applied to the /igh +ourt alleging that since they were the beneficiaries of a valid
pardon their detention and prosecution for offences in respect of which the pardon had been granted
infringed their right to liberty and security of the person and the right not to be deprived thereof e"cept by
due process of law afforded by section ,(a) and their right under section ,(b) of the constitution to the
(7
protection of the law. *ight of the applicants also applied to the /igh +ourt for leave to issue a writ of
habeas corpus directing the +ommissioner of .risons to show why they should not be released
immediately0 alleging that by reason of the pardon their detention was illegal.
The +ourt refused both motions# the +ourt of Appeal upheld this. The .rivy +ouncil held A
1. The applicants had established that they were the beneficiaries of a valid pardon which would
render their detention and imprisonment on charges relating to offences covered thereby unlawful0
and it was for the +ommissioner of .risons and the A4 to =ustify their detention# that0 accordingly0 the
applicants were entitled to a writ of habeas corpus as of right so that the lawfulness of their
imprisonment could be immediately determined0 and at that hearing the court would have =urisdiction
to inHuire into the validity of the pardon even though0 of the applicants were not released0 they would
be entitled under s)( of the +riminal .rocedure Act to assert the pardon again as a special plea in bar
to the indictment when they were arraigned# and that therefore all the applicants would be granted
leave to issue a writ of habeas corpus. &ord Ac3ner said ;their &ordships have no hesitation in saying
that it is in the overall interest of =ustice that there should be the earliest possible decision as to the
validity of the pardon0 if it is to be challenged. !f the pardon remains unchallenged or is held to be
valid0 the unlawful imprisonment of the applicants will then cease<A prima facie case having been
established that the applicants were unlawfully detained0 it is clearly for the respondents to ma3e a
return =ustifying the detention.>
Co%3#ct& K#llr"
>ratt E %oran v A9 of ;a&ai,a ->:/ -1993/ 53 #<R 357:
The appellants were convicted in 17D7 of a murder committed in 17DD (since which date they had been
detained in custody). Their application for leave to appeal was re=ected in 17L8 and the reasons given in
17L,. @pecial leave to appeal to the .rivy +ouncil was refused in 17LK. !n 1771 the appellants instituted
proceedings under section (- of the +onstitution of amaica claiming that their continued detention under
sentence of death contravened section 1D(1). These proceedings were dismissed in the @upreme +ourt
and the +ourt of Appeal dismissed their appeal.
Hl&0 advising that the appeal be allowed0 (i) that section 1D(() authorised the passing of a =udicial
sentence of a description of punishment which had been lawful in amaica before !ndependence but it was
not concerned with the act of the e"ecutive in carrying out the punishment# accordingly0 section 1D(() did
not itself preclude a finding that the circumstances in which the e"ecutive intended to carry out a sentence
were in breach of section 1D(1). (ii) That the e"ecution of the death sentence after unconscionable delay
would constitute a contravention of section 1D(1)0 e"cept where the delay had been the result of some
fault of the accused0 e.g. an escape from custody or the frivolous or timeJwasting resort to legal
procedures such as would amount to an abuse of process# but delay attributable to the accused e"ploring
legitimate avenues of appeal did not fall within such e"ception. (iii) That to e"ecute the appellants after
holding them in custody and under sentence of death for nearly fourteen years would be inhuman and in
breach of section 1D(1) and their sentence should be commuted to life imprisonment.
!r cur#a*. !f capital punishment is to be retained it must be carried out with all possible e"pedition.
+apital appeals must be e"pedited and legal aid allocated at an early stage. Although no attempt is made
to set a rigid timetable0 the entire domestic appeal process should be completed within appro"imately two
years. !f in any case e"ecution is to ta3e place more than five years after sentence there will be strong
grounds for believing that the delay is such as to constitute 1inhuman or degrading punishment or other
treatment2.
)8
:atholi, :o&&ission for ;usti,e and >ea,e in Ki&!a!3e v A9 -1993/ 0 $R: 079. 315
!n this case0 which predated .ratt and 6organ0 the Simbabwean @upreme +ourt held that a long delayed
e"ecution could violate the right not to be sub=ected to cruel and unusual treatment or punishment. .er
Gu11ay C8 ;$ecause retribution has no place in the scheme of civilised =urisprudence0 one cannot turn a
deaf ear to the plea made for the enforcement of constitutional rights. /umaneness and dignity of the
individual are the hallmar3s of civilised laws. ustice must be done dispassionately and in accordance
with constitutional mandates. The Huestion is not whether this court condones the evils committed by the
four condemned prisoners0 for certainly it does not. !t is whether the acute mental suffering and brooding
horror of being hanged which has haunted them in their condemned cells over the lapse of time since the
passing of the sentence of death0 is consistent with the guarantee against inhuman or degrading
punishment or treatment.>
Ine of the more challenging but enduring aspects of the rule of law is the insistence that even those who
flout the law or see3 to undermine or overthrow the very foundations of the legal system are nevertheless
entitled to the law2s protection.
.Eual#ty 1for t4 law
=itBpatri," v )terlin Housin Asso,iation [1994] 0 #$R 005. 056:
Arthur ;) Hall v )i&ons [077] 3 #$R 553. 567:
The law does not rule unless everyone in similar circumstances are treated the same. Thus lawyers
should be sub=ect to claims in negligence =ust as engineers or doctors are. And all families are to be
treated the same even if the partners are the same se".
T4 Rul of Law a" t4 !u1l#c I%tr"t #% Law a%& Or&r
R v A -no 0/ [0771] 3 All ER 1
The defendant was charged with rape. $y his defence he claimed that the complainant had consented to
the se"ual intercourse0 which formed the sub=ect matter of the charge. At a preparatory hearing he sought
leave under section ,1 of the Uouth ustice and +riminal *vidence Act 1771 to adduce evidence and to
as3 Huestions relating to an alleged consensual se"ual relationship between himself and the complainant
over the preceding three wee3s0 the most recent act having occurred one wee3 before the alleged offence.
/e also claimed that the complainant had engaged in se"ual intercourse with his friend shortly before the
incident. The =udge ruled that the complainant could be crossJe"amined with regard to the incident with
the defendant2s friend since it had occurred ;at or about the same time as the event which is the sub=ect
matter of the charge> within the meaning of section ,1())(b) of the 1777 Act.
6ro3n v )tott [0771] 0 All ER 97:
)1
TH. 8UDICIAR7
Rawl#%" asserts that a democracy is as sound as the independence and integrity of the =udicial systems.
+ourts are positioned to fairly balance the scales of =ustice between the state and citizen and between
citizen and citizen.
R v 6eaureard:
+hief ustice 'ic3son stressed that =udicial independence involved complete freedom from arbitrary
interference or intrusion from the e"ecutive and legislature.
The value of =udicial independence is depicted by the +anadian case of Ialente v8 R [1945] 05 2$R -5
th
/
161: here0 it was said that independence reflects the traditional constitutional value of =udicial
independence. !t connotes not merely a state of mind or attitude in the actual e"ercise of =udicial
functions0 but a status or relationship to others0 particularly to the e"ecutive branch that rests on ob=ective
conditions or guarantees.
+iting S#r Guy Gr%D
udicial independence is the capacity of the courts to perform their constitutional
function free from actual or apparent interference by0 and to the e"tent that it is
constitutionally possible0 free form actual or apparent dependence upon0 any person
or institutions0 including in particular the e"ecutive arm of government over which
they do not e"ercise direct control.
udicial independence involved both individual and institutional relationships. The individual
independence of a =udge as reflected in matters as security of tenure0 and institutional independence of the
court0 which he or she presides as reflected in the institutional or administrative relationship to the
e"ecutive and legislative branches.
udicial independence is fundamental to the capacity to do =ustice in a particular case to public confidence
in the administration of =ustice. ?ithout that confidence the system cannot command the respect and
acceptance that are essential to its effective operation.
!n the <ndependent ;a&ai,a :oun,il for Hu&an Rihts :aseG &ord $ingham of +ornhill described
=udicial independence# that it negatively means the protection of =udges from e"ecutive pressure or
interference. /e said that it is universally recognized as a necessary feature of the rule of law.
There have been concerns about =udicial independence in the +ommonwealth +aribbean in the past.
Slwy% Rya% in his boo3 on the =udiciary says the following:
;There have been repeated allegations over the years that =udges have been suborned
by the political e"ecutives in the *astern +aribbean and that they have been on the
receiving end of 1unspo3en directives2. There is in fact a widespread belief that in
the micro states of the +aribbean0 resident and even Appeal court =udges are
susceptible to manipulation by political e"ecutives especially since governments are
responsible for providing them with basic things li3e cars0 houses which have to be
maintained by the state0 money for travel0 and other prereHuisites which ma3e life in
a small claustrophobic state tolerable. %esident =udges have thus been 3nown to
)(
reHuest permission to be e"cused from having to deal with politically sensitive cases
such as election petitions0 or cases involving allegations of corruption.
A former leader of the opposition in @t. Gincent0 +r. 9. Bac4 accused the
=udiciary and magistracy of being corrupt and dependent. As he complained ;the
=udiciary here tends to give of the benefit of the doubt to the government rather than
to what the law actually says0 and ! thin3 this is bad. ! have 3nown of one =udge in
@t. Gincent who said that he could never rule against the government><.
T4 Co%"t#tut#o%al Ba"#" of 8u&#c#al I%&'%&%c
There is an idea developing in +anadian constitutional law that =udicial independence is an unwritten
constitutional principle that under girds the whole constitutional structure. The argument in %e .ublic
@ector .ay %eduction Act 1-8 '&% (,
th
) -DD R 1-- '&% (,
th
) 1 was that it clearly applied to courts not
mentioned in the constitution or specially protected by the constitution. This principle could have huge
implications for determining the constitutional protection for protection of =udges of inferior courts in the
+aribbean.
udicial independence is said to be essential because of the role of the courts in protecting the
constitution. 6eureard says that the need to depoliticize the courts comes from their role as defenders of
the constitution. $ecause of this they must be completely separate from all other participants in the
=udicial system.
D"c4%" says that =udicial independence is the last bulwar3 of the citizenry against the arbitrary
encroachments of the state. !t is therefore a means which we realize other constitutional values li3e the
rule of law.
The Irganization of *astern +aribbean @tates0 states many of the provisions traditionally addressing
=udicial independence are found in the @upreme +ourt Act and not the +onstitution. !tr)#% 8 in =arrell
v8 Attorne+ 9eneral of Antiua -1979/ 07 #<R 379 e"plained that: ;+onstitutions in the ?est !ndies
Associated @tates have one common feature in that no provision for a udicature is to be found in the
+onstitution itself. The udicature is a federal one established by the +ourts Irder (@ 1 5o. (() of 17KD).
This Irder provided for the establishment of a @upreme +ourt consisting of a +ourt of Appeal and a /igh
+ourt of ustice0 for the =urisdiction of those courts0 and for the appointment and tenure of the office of
=udges in those courts. These provisions are entrenched in the constitution.
Cr#tr#a to tll t4 #%&'%&%c of t4 Bu&#c#ary
!n loo3ing at the independence of the =udiciary0 four things must be ta3en into account:
1. The appointment of =udges.
(. The security of tenure.
). %emuneration.
,. urisdiction.
(&oo3 at these criteria in relation to your local =urisdiction and the ++).
!n the common law system0 we place enormous faith in =udges0 believing that they have a strong instinct
for the appropriate legal result in any case and that this is an 1amalgam of his 3nowledge of legal
))
principle0 his e"perience as a lawyer0 his understanding of subtle restraints with which all =udges should
wor30 his developed sense of =ustice and his innate sense of humanity and his common sense.2 &ord 4off
of +hievely0 ;The Future of the +ommon &aw> (177D) ,K !+&B D,- at D-).
)he appointment of 2udges
!n most =urisdictions the +hief ustice and the .resident of the +IA are appointed by the /ead of @tate on
the recommendation of the .rime 6inister after consultation with the &eader of the Ipposition. Sct#o%
>H of the 8a*a#ca% Co%"t#tut#o% states:
(1) The +hief ustice shall be appointed by the 4overnor 4eneral by instrument
under the $road @eal on the recommendation of the .rime 6inister after
consultation with the &eader of Ipposition.
.uisne udges are appointed by the /ead of @tate on the advice of the udicial
@ervices +ommission (@+). Sct#o% >H -C0 of the 8a*a#ca% Co%"t#tut#o% states:
(() The puisne =udge shall be appointed by the 4overnor 4eneral by instrument
under the $road @eal acting on the advice of the udicial @ervice +ommission.
The members of the udicial @ervices +ommission are appointed by the /ead of @tate on the
recommendation of the .rime 6inister after consultation with the &eader of the Ipposition. The @+
usually comprises the +hief ustice0 the .resident of the +IA and the +hairman of the .ublic @ervice
+ommission (.@+) as well as three other members who are appointed by the /ead of @tate on the
recommendation of the .6 after consultation with the &eader of the Ipposition.
The composition of the service commission is very important. 6ost view this commission as adding a
layer of impartiality to the appointment process. !rof""or Car%$# points out on the other hand that
when the effective decision lies with the 4overnor 4eneral or the @ervice +ommission the fact that the
appointments of these offices are dependent on the .rime 6inister must have potential influence.
Ian Roo+en v )tate:
A defendant in a criminal case challenged the proceedings against him on the basis that the magistrates
hearing the case did not en=oy the standard of independence prescribed in the +onstitution for the
=udiciary.
The case addresses the Huestion of the institutional independence and constitutional legitimacy of @outh
Africa2s magistracy. The constitutionality of various provisions of ordinary legislation dealing with the
magistracy was challenged.
The constitutional court found that the core of =udicial independence was the complete freedom of
individual =udicial officers to hear and decide the cases that come before themJ with no outside
interference or attempt to interfere with the way in which =udicial officers conduct their cases and ma3e
their decisions. !ndividually =udicial officers must be free to act independently and impartially in dealing
with the cases they hear and0 at an institutional level0 there must be structures to protect courts and
=udicial officers against e"ternal interference. These safeguards must include security of tenure and a
basic degree of financial security.
The court said that in deciding whether a particular court lac3s the institutional protection that it reHuires
functioning independently and impartially0 it is relevant to have regard to the core protection given to all
courts by our constitution0 to the functions that the particular court performs and to its place in the court
),
hierarchy. &ower courts are0 for instance0 entitled to protection by higher courts should their
independence be threatened. The greater the protection given to the higher courts0 the greater is the
protection that all courts have.
udicial independence can be achieved in a variety of ways and the mere fact that the legislation dealing
with lower courts differs from the +onstitution2s provision for higher courts is no reason for holding it to
be unconstitutional. ?ith regard to the appointment of magistrates0 the court found that the mere fact that
the e"ecutive and the legislature participate in the appointment process is not inconsistent with =udicial
independence. The constitution itself allows for the e"ecutive and the legislature to participate in the
appointment of =udges and this approach is followed by various other constitutional democracies0
including the United @tates.
&i3ewise0 there can be no constitutional ob=ection to the appointment of acting or temporary magistrates
for practical reasons although these appointees should not hold office at the discretion of the e"ecutive.
The fact that a minister appoints magistrates with consultation with a commission but need to ta3e the
advice of the commission is not constitutionally ob=ectionable. The e"ecutive can retain the power to
appoint =udges without infringing the institutional independence reHuired by the constitution.
The 3ey is that once appointed0 =udges should enforce the law impartially and function independently2
=udicial authority must be vested in the courts and they must be protected from interference.
Ca% a 'r3#ou" off#c #% t4 /cut#3 1ra%c4 &#"Eual#fy a ca%&#&at fro* Bu&#c#al off#c(
The .rivy +ouncil in the following amaican case answered this Huestion<
>anton v8 %inister of =inan,e and another -no8 0/ -0771/ 59 #<R 514:
The .antons were challenging the constitutionality of the Financial !nstitutions Act by which the minister
too3 charge of companies they were involved in. They made an allegation of a breach of the rules of
natural =ustice because of the president of the +ourt of Appeal# +arl %attray had signed a certificate
indicating that the Act was compatible with the constitution.
The .rivy +ouncil said that he was not a champion of the constitutionality of the measure. There is
nothing to show that he was actively engaged in the promotion of the $ill. /is past political history is not
ordinarily a ground for disHualification.
*"perience outside the law0 whether in politics or elsewhere0 may reasonably be regarded as enhancing a
=udicial Hualification rather than disabling it. !n countries where it is recognized and accepted that =udges
may well have behind them a history of political affiliation or partisan interest it has also to be recognized
that such historical associations can be put aside in the interest of performing a =udicial duty with
independence and impartiality.
CC8D The .resident of the ++ is appointed by a ma=ority vote of V of the contracting parties on the
recommendation of the %egional udicial and &egal @ervices +ommission. The other =udges are
appointed by a ma=ority vote of the commission. &ocal =udiciary does not have such a diverse
composition. /ow does this help with the independence of the =udiciaryT
The constitution does not deal with %esident 6agistrates and 6agistrates. They are created by statutes.
Co*'o"#t#o% of t4 R$#o%al a%& 8u&#c#al L$al Sr3#c" Co**#""#o%
)-
The body comprises the following:
.resident (+hairman)
( persons nominated by formal regional bar associations (I++$A0 I*+@ $ar Association)
1 chair of udicial @ervice +ommission rotating
1 chair of .ublic @ervice +ommission rotating
( persons from civil society nominated by the @ecretary 4eneral of +A%!+I6 and the 'irector
4eneral of the I*+@ following consultations with regional 54Is () year term)
( distinguished =urists appointed by the 'ean of the Faculty of &aw0 U?! and other legal
education institutions0 +hair of the +ouncil for &egal *ducation.
( persons nominated by local bar associations.
G%ral Iual#f#cat#o%" for Bu&$"D 5o set criteria or reHuirements to be satisfied. /owever0 the ++
has some reHuirements that must be satisfied (p.11).
As far as the higher =udiciary is concerned0 Sct#o% >H -A0 of the 8a*a#ca% Co%"t#tut#o% states: ;The
Hualifications for appointment as a =udge of the @upreme +ourt shall be such as may be prescribed by any
law for the time being in force# provided that a person who has been appointed as a =udge of the @upreme
+ourt may continue in office notwithstanding any subseHuent variations in the Hualifications so
prescribed.
T4 CC8J
The ++ has some reHuirements that must be satisfied. The following Hualifications are mentioned in the
++ Treaty for =udges:
A =udge of a court of unlimited =urisdiction in the civil and criminal matters in the territory of
+ontracting party or in some part of the +ommonwealth0 or in a @tate e"ercising civil law
=urisprudence common to +ontracting parties0 or a court having =urisdiction in appeals from any
such court and who0 in the opinion of the +ommission0 has distinguished himself or herself in that
office# or
/as been engaged in the practice or teaching of law for a period or periods amounting in the
aggregate to not less than fifteen years in a 6ember @tate of the +aribbean +ommunity or in a
+ontracting party or in some part of the +ommonwealth0 or in a @tate e"ercising civil law
=urisprudence common to +ontracting parties0 and has distinguished himself or herself in the legal
profession.
A''o#%t*%t of +a$#"trat"
The constitution does not deal with R"#&%t +a$#"trat" and +a$#"trat". Their positions are created
by @tatute. There is growing concern about the independence of inferior court =udges and the need to
safeguard such independence in ways similar to that provided for superior court =udges. @ome
constitutions vest the power to appoint0 remove and e"ercise disciplinary control over inferior court
=udges in the 4overnor 4eneral acting on the advice of the udicial @ervice +ommission.
Sct#o% ==C -=0 of the 8a*a#ca% Co%"t#tut#o% ma3es provisions for the power to ma3e appointments0
remove and to e"ercise disciplinary control over persons holding or acting in offences hereby vested in
the 4overnor 4eneral acting on the advice of the udicial @ervices +ommissions.
)K
8u"t#c Hu$4 Rawl#%" suggests that all =udges including the magistrates should fall within the purview of
the constitution where appointments are concerned. The 3an &ooyen +ase ta3es the view that the
constitution protects the independence of the magistracy and ordinary legislation addressing magistrates
may be open to constitutional scrutiny. /owever0 note the reluctance of the +onstitutional +ourt of @outh
Africa to hold that the provisions relating to the appointment were in breach of the constitution.
T4 A''o#%t*%t !roc""D There is growing consensus that the process for appointing =udges should be
transparent. The Lat#*r Gu#&l#%" suggests that =udicial vacancies be advertised and that
recommendations for appointment should come from a =udicial services commission.
)raining: The Lat#*r Gu#&l#%" suggests that a culture of =udicial education should be developed.
Also that training should be organized0 systematic and ongoing and under the control of an
adeHuately funded =udicial body0 and include the teaching of the law0 =udicial s3ills and the
social conte"t0 including ethnic and gender issues.
T4 "cur#ty of t%ur
The independence of the =udiciary also depends on the security of tenure given to =udges by the
+onstitution. This security of tenure entails the following:
udges may not be dismissed e"cept for cause relating to infirmity of body or mind or stated
misbehaviour. /owever0 in such a situation there must be a tribunal hearing followed by an appeal
to the udicial +ommittee of the .rivy +ouncil.
The =udges2 salaries are charged on the +onsolidated Fund and their conditions of service may not
be altered to their disadvantage. udicial independence also rests on provisions stipulating that
=udges2 terms and conditions of office shall not be altered to their disadvantage during their
continuance in office.
Scur#ty of Off#cD The office of a =udge cannot be abolished while there is substantive holder
thereof. Sct#o% >K -A0 8a*a#ca
6any writers say that the security of tenure is less dependent on the method of appointing =udges and
more dependent on their security of tenure.
!n Hinds v The Queen: Lor& D#'loc) said ;their independence from political pressure by .arliament or
by the e"ecutive of their =udicial functions shall be assured by granting them such degree of security of
the tenure of their office as is =ustified by the importance of the =urisdiction that they e"ercise.>
The constitution provides that the office of a @upreme +ourt =udge cannot be abolished whilst there is a
substantive holder. udges can only be removed for inability either due to infirmity of mind or body or
for misbehaviour. The procedure for removing them involves the decision of a locally appointed tribunal0
which had been set up to investigate the alleged misbehaviour. This recommendation would then be sent
to the .rivy +ouncil for a final decision Hinds8 The principles of natural =ustice must be followed# Rees v
:rane8
4e+urity of )enure for %nferior Court 5udges
)D
The te"t of the +onstitutional document does not seem to confer on the lower =udiciary the same security
of tenure and the full tenure of =udicial independence as is en=oyed by the members of the higher
=udiciary. /owever0 the lower =udiciary appears to have received a big =udicial boost in that regard by the
case of:
E&anuel v8 A9 suit Jo8 195 of 1949. H :t8 2o&ini,a:
/ere the contract of a chief magistrate in 'ominica was terminated with immediate effect in accordance
with his contract0 but he was not removed for inefficiency0 misconduct or any other
1embarrassing or damnifying reason2.
The constitution of 'ominica reHuired magistrates to be appointed by the .ublic @ervice +ommission and
dismissed or removed by the udicial @ervices +ommission and each of the two bodies is e"pected to
consult with the other before it e"ercises the function allocated to it. This process did not ta3e place in his
termination. The government argued that only if the termination were a form of punishment would the
constitutional provisions apply. Tho&as v8 A9 was cited with approval for asserting the constitutional
protection accorded to civil servants from political influence.
Hl& that the answer cannot depend on whether the magistrate is on contract as distinct from when he is
not. The protection from the tentacles of the e"ecutive given to the magistrate and other civil servants is
because of the crucial role they play in the business of the state.
!n terms of the ++ point 1-# 1L# 17.
!n amaica0 the retirement age for =udges is D8# s.188 (1) of the constitution of amaica. +an =udges stay
on before retirement ageT Ialente v R: e"tension beyond retirement age would not affect =udicial
independence since once appointed# =udges are li3ely to act solely out of consideration for the interest of
the court and the administration of =ustice.
)oo"oo v A9:
!n Trinidad and Tobago the +hief ustice wrote the .resident of the %epublic as3ing for permission to
continue in office until the end of the short term to enable him to deliver =udgement etc. The fact that the
president in granting the permission acted on the advice of the +hief ustice did not infringe any principle
of natural =ustice. The relevant section did not limit him to matters0 which were a continuation of his
previous tas3s.
#hitfield v A9:
Article 7K of the constitution reHuires a =udge of the @+ to retire at the age of K-. ;.rovided that the
4overnorJ4eneral0 acting on the recommendation of the .rime 6inister after consultation with the
&eader of the Ipposition0 may permit a ustice who attains the age of si"tyJfive years to continue in
office until he has attained such later age0 not e"ceeding si"tyJseven years0 as may (before the ustice has
attained the age of si"tyJfive years) have been agreed between them.>
Tr*#%at#o% fro* Off#cD 6ost constitutions outlines a procedure for terminating the services of a
=udge similar to that found in the amaican constitution. Sct#o% =FF -=0 -a0 provides:
)L
(a) A =udge of the @upreme +ourt may be removed from office only for inability to discharge the
functions of his office (whether arising from infirmity of body or mind or any other cause) or for
misbehaviour.
!n Hinds the .rivy +ouncil emphasized that: ;they can only be removed from office upon the advice of
the udicial +ommittee of /er 6a=esty2s .rivy +ouncil in the United Kingdom given on a reference made
upon the recommendation of a tribunal of inHuiry consisting of persons who hold or have held =udicial
office in some part of the +ommonwealth.
There is no doubt that the rule of natural =ustice applies to these proceedings. The Lat#*r Gu#&l#%"
agree that in cases where a =udge is at ris3 of removal0 the =udge must have the right to be fully informed
of the charges0 to represent at a hearing0 to ma3e a full defence0 and to be =udged by an independent and
impartial tribunal.
Rees and others v :rane:
After receiving complaints about a =udge the +hief ustice too3 him from the roster of =udges sitting the
following term. The &@+ agreed with the decision. ?ithout notifying the =udge0 the commission met to
consider whether it should ma3e representation to the president about the removal and an investigation.
After providing some information to the +ommission0 the +hief ustice ceased to participate in the
proceedings. The =udge was not told the complaints against him or given an opportunity to answer them.
The president was advised to start an investigation and a tribunal was appointed.
Hl&D the +hief ustice2s decision to suspend him form sitting was not merely an administrative
arrangement but an indefinite suspension which was not in accordance with the provisions of the
+onstitution. !n confirming that decision0 the commission acted ultra vires.
!n the preliminary or initiating proceedings the person concerned generally had no right to be heard. This
was not a rigid rule. 4iven the seriousness of the allegations0 the commission had not treated the =udge
fairly in failing to inform him at that stage of the allegations made against him and give him a chance to
reply to them0 albeit not necessarily by an oral hearing. The breached the principles of natural =ustice.
The Lat#*r Gu#&l#%" suggest that the grounds for removal of a =udge should be limited to inability to
perform =udicial duties and serious misconduct. That in all other matters0 the disciplinary process should
be conducted by the chief =udge of the courts and the disciplinary procedures should not include the
public admonition of =udges. Any admonitions should be delivered in private0 by the chief =udge.
T4 CC8J
!n comparing this with the ++0 the .resident is appointed for a nonJrenewable term of D years or until
the age of D(# whichever is earlier and the other =udges are appointed until the age of D(. Unli3e the local
=udges the ++ =udges cannot get an e"tension other than a threeJmonth period to complete partJheard
matters. @ecurity of tenure has two main issues# removal from office and retirement. A third issue has to
deal with acting =udges. Acting =udges are appointed by the /ead of @tate on the advice of the @+ and
this appointment is valid until revo3ed by the /ead of @tate ($elize) or on the advice of the @+
(amaica). Ialente v R: can an acting =udge be independent and whether they really en=oy security of
tenureT !n Ialente it was said that the essence of security of tenure is tenure whether until an age of
retirement0 for a fi"ed term or for a specific ad=udicative tas3 that is secure against interference by the
e"ecutive or other appointing authority in a discretionary or arbitrary manner.
)7
6any0 including @ir Fred .hillips have e"pressed scepticism about the retirement age for =udges: Gne is
puBBled as to 3h+ the *udes of [the ::;] should retire at 708 The ?nited )tates )upre&e :ourt has no
retire&ent ae for *udes8 The )upre&e :ourt of :anada and the House of $ords have a retire&ent ae
of 758 There is therefore ,ertainl+ no reason 3h+ the :ari!!ean should not have a retire&ent ae of 758
R*u%rat#o%
!n the case of Ialante ( it was said that one of the essential components of =udicial independence relates to
financial security# security of salary to remuneration and security of pension. @uch security means that
the e"ecutive in a manner that could affect =udicial independence should establish by law and not sub=ect
to arbitrary interference the right to salary and pension.
!n the 6eaureard case it was said that without adeHuate remuneration a =udge cannot feel independent of
the e"ecutive and that it would be embarrassing to place the =udiciary at the mercy of ministers to plead
for increases in salary and allowances. !n the +aribbean (for most =urisdiction)0 =udicial independence is
secured by virtue of salaries being charged on the consolidated fund. /owever0 this independence could
be diluted since it is the political directorate that determines the level of remuneration and grants any
increases. There is a provision that salaries should not be altered to their disadvantage. @. 181 of the
constitution.
Gu11ay 8 says that without adeHuate remuneration0 a =udge cannot feel independent of the e"ecutive. A
=udge2s wor3 and thin3ing must not be frustrated by lac3 of money. !t is embarrassing to place the
=udiciary at the mercy on 6inisters of departments to plead for increases in salary and allowances. /e
says that the charging of =udges2 salaries directly to the consolidated fund is a safeguard however
symbolic against the withholding by parliament of necessary financial provision to pay =udges.
Rawl#%" suggests that an independent body should resolve the Huestion of salaries and that there should
be intervals at which remuneration is reviewed. Re ;udes Referen,e: They suggested the establishment
of a commission to bro3er disputes between the e"ecutive and the =udiciary. udges would not be
engaged in negotiations themselves with the e"ecutive or legislature although representations can be
made. udicial salaries cannot be reduced or eroded below a basic minimal level.
T4 CC8J
?ith the ++ there is a fund from which the =udges will get paid. ++ =udges have more independence.
8ur#"&#ct#o% of t4 court
udicial independence has to do with the =udiciary having an independent =urisdiction. @ome writers
contend that there is no use to having independent =udges if there power can simply be ta3en away and
given to tribunals staffed by persons who do not possess the Hualifications of =udges and who are not
given the protection afforded to =udges under the constitution. Under the constitution0 the @upreme +ourt
has e"clusive =urisdiction to hear cases involving.
To hear cases involving an alleged violation of the fundamental rights provision0 the @upreme +ourt is
also deemed to posses certain inalienable power including unlimited original =urisdiction in all serious
,8
criminal offences and original and unlimited =urisdiction in all civil cases as well as inherent supervisory
=urisdiction over inferior tribunals0 Lor& D#'loc) Hinds.
&oo3 at Huote from Lor& B#%$4a* (!+/%)0 which said that =udicial independence means that protection
of =udges from e"ecutive pressure or interference and this is universally recognised as a necessary feature
of the rule of law. /e lin3s =udicial independence with the rule of law.
<ndependent ;a&ai,a :oun,il for Hu&an Rihts -1994/ $td8 And Gthers v8 %arshallA6urnett EAttorne+
9eneral -unreported/ 3 =e!ruar+ 0775 >riv+ :oun,il. ;a&ai,a ->:A Jo8 51 of 0775/:
Lor& B#%$4a* said that =udicial independence means the protection of =udges from e"ecutive pressure or
interference and this is universally recognised as a necessary feature of the rule of law. /e lin3s =udicial
independence with the rule of law.
TH. L.GISLATUR.
I%tro&uct#o%
The legislature means parliament with its two houses. The main issue relates to parliamentary privileges.
Traditionally each house of parliament has been allowed to e"ercise certain powers and privileges0 which
are regarded as essential to the dignity and proper functioning of parliament. The members of parliament
also en=oy certain privileges but these e"ist for the benefit of parliament and not for the personal benefits
of its members.
According to Coo) =ust as every court of =ustice has laws and customs for its direction so too in 1the /igh
+ourt of .arliament2 all matters concerning its members ought to be determined by parliament and not by
the courts. !n the +ommonwealth +aribbean privileges are conferred on parliament by the constitution0
statute or the common law. These privileges include the right of the /ouse to determine Huestions of
membership and to regulate their own procedures. !t also covers the power of parliament to protect its
own privileges and to discipline persons for violating them. .ersonal privileges include freedom of
speech0 the freedom of members from arrest and the protection of members from the service of process
within the prescient of parliament during sessions A 6aha&as %ethodist v )+&onnette8

Fr&o* of "'c4
This is considered to be the most important privilege since the representative of the people should feel
free to discuss all matters affecting their constituents or the nation as a whole# 2e $ille v Jational
Asse&!l+ A it was said that this privilege allows for open and robust debate.
6radlauh v 9ossett A this case is usually cited as authority for the principle that what is said within the
walls of parliament cannot be inHuired into by a court of law.
>re!!le v Television Je3 Kealand
,1
!t was held that courts and parliament recognise their respective constitutional roles so the courts will not
allow any challenge to be made to what is said or done by parliament in performance of its legislative
functions and for the protection of its privileges.
Further the privilege is a privilege of parliament itself and not the individual ma3er of the statement.
@ection ,L of the amaican +onstitution provides that no civil or criminal proceedings may be instituted
against any member of parliament for anything said or written in parliament. This protection is deemed
necessary for parliament to e"ercise its lawJma3ing functions. The laws of defamation may catch
anything said outside of these parameters
.
Under the tort of defamation there is the defence of Hualified privilege if the statement was made in good
faith and in the absence of malice# Hus!ands v Advo,ates8
T4 R#$4t to Co%trol t4 Co*'o"#t#o% of !arl#a*%t
6radlauh v 9ossett A the /ouse of +ommons had refused to ma3e an atheist ta3e the reHuired oath.
+ourt said that this was a parliamentary matter. /owever0 in the +aribbean the constitutions e"pressly
confer on the @upreme +ourt the =urisdiction to resolve disputes about membership of parliament.
>eters E :haitan v A9 A here the court recognised that in a system of constitutional supremacy the court
should not be prevented from e"ercising its =urisdiction to determine disputed elections.
TH. .L.CUTI9.
I%tro&uct#o%
The *"ecutive function is the general and detailed carryingJon of government. According to law the
e"ecutive comprises those persons who share in the formulation of policy the administration of laws and
the provision of services for the maintenance of law0 order and defence. The person in whom e"ecutive
power resides depends on whether the state is monarchical or republic. The prime minister and cabinet
e"ercise the legal and practical controlling power over the administration of government as they have the
power to determine the general direction and control of government. !t is +abinet that coordinates
administrative action and sanctions legislative proposals. 8%%#%$" compared cabinet to a board of
directors.
6rerogative 6o*ers
.rerogative power refers to the residue of discretionary or arbitrary power legally left in the hands of the
sovereign. These special powers have traditionally included the power to declare war0 ma3e peace0 enter
treaties0 recognise foreign states as well as the prerogative of mercy A this is vested in the 44 and allows
him to pardon convicted persons.
Conventions
,(
+onstitutional conventions are usages0 habits or practices that have become binding on those to whom
they apply. For the creation of a convention there are two main reHuirements:
A general acceptance that such conduct is mandatory.
!ts purpose is referable to the e"isting reHuirements of constitutional government.
+onventions are not enforceable because they are not law. /owever0 many of the $ritish constitutional
conventions have been codified in the +aribbean constitutions and therefore elevated to the status of law.
6ost of these conventionsClaws relate to the powers of the e"ecutive. @ome e"amples of these
conventions that have been made into law include:
That the head of state appoints as prime minister the person who is best able to command the
confidence of the ma=ority of the lower house.
There are still conventions that are not law# e"ample:
A bill cannot become law until it has the assent of the head of state A 44 always gives his assent
(has the discretion not to sign it) but the convention is that he will sign it >a+ne v A98
*ven though the rule is that the 44 holds office at the pleasure of the Bueen0 he holds office at the
pleasure of the prime minister.
+onventions basically help to regulate the e"ercise of discretionary powers that are conferred by the
constitution.
T4 !owr" of t4 Ha& of Stat
1. )he po*er to appoint a 6rime 7inister. The &eader of Ipposition is the person who
commands the second ma=ority in parliament (hence there could be three political parties). !s
there room for a sub=ective determination or does it simply mean that the person who is the
head of the party with the most seats in parliament should automatically be selected
Re 6la"e
The head of state appointed the head of the minority party. The issue came down to whether this whole
appointment process was =usticiable. !t was held that the 44s decision was not reviewable because the
Huestion of who commands ma=ority support is sub=ective and up to his personal =udgement. /e is legally
free to consult whomever he chooses. $ut the court will not review the decision since the head of state
might be reHuired to divulge sensitive0 confidential information.
Ade!eno A
Jin"an A this case made a distinction between whether the provision made a distinction between the
1confidence2 or 1support2 of the ma=ority.
>re&a,handra A 44 should consider ob=ective criteria when ma3ing such decisions.
,)
?lufaFAlu A where the head of state is reHuired to act in accordance with the advice of the prime minister
or cabinet he is only obliged to act on that advice where the advice was legitimately given. @o advice that
is contrary to law or lac3ing legitimacy could not be the type of advice that he is reHuired to follow. This
is relevant to the appointment to the +hief ustice0 other members of cabinet0 the appointment of the A4
and the @ervice +ommissions (on the advice of prime after consultation with the opposition).
(. )he po*ers to summon prorogue and dissolve parliament A this is usually done on the advice
of the prime minister.
=ran,ois v A9 A decisions to dissolve parliament and issue writs for general elections are discretions
e"pressly conferred upon the 44 by the constitution and are not =usticiable.
Re Alva 6ain
Tho&as v A9
'. )he po*er of head of state to refuse or grant assent to ,ills.
T4 Rol of t4 ./cut#3 #% t4 Law +a)#%$ !roc""
(&oo3 =ointly with @eparation of .owers)
The legislature ma3es laws. The e"ecutive ma3es proposed legislative measures but their validity
depends on the approval of both houses of parliament as well as royal assent. @trictly spea3ing0 once the
bill has passed0 it is the function of the e"ecutive to carry that law into effect.
Ca% t4 /cut#3 rfu" to #*'l*%t a "tatut(
R v Ho&e )e,retar+ eC parte =ire 6riades ?nion [1995] 0 #$R 565
The issue was whether the secretary of state (member of the e"ecutive) could prevent a statute from
coming into force even though it had been properly passed. The +IA held A once parliament has
formally enacted legislation it would not entrust to a member of the e"ecutive a complete and unfettered
discretion as to whether those legislative provisions should ever ta3e effect. !n the /ouse of &ords0 Lor&
Brow%-W#l)#%"o% said that it would be most surprising that at the present day prerogative powers could
be validly e"ercised by the e"ecutive so as to frustrate the will of parliament.
)uttar v A9
The issue was whether the e"ecutive could refuse to implement an unconstitutional statue. The court said
that if the unconstitutionality of an act is so obvious (patent) the e"ecutive may be =ustified in declining to
enforce it but only for a limited period necessary to rectify the situation and only after a cabinet decision
has been ta3en with the advice of the government2s legal officers. 4enerally0 if the e"ecutive doubts the
constitutionality of a statute then they should see3 guidance from the courts# otherwise an amendment or
,,
repeal of that law should be pursued in parliament. $ut in the meantime the statute must be obeyed and
be enforced.
,-