Is the Constitution supreme in the Commonwealth Caribbean?

Sources of law indicate the origin of laws. Prior to independence, Commonwealth Caribbean
countries celebrated the doctrine of Parliamentary sovereignty. Dicey explained this principle to
mean that parliament has the right to make or unmake any law and that no person or body is
recognized by the law as having a right to override or set aside the legislation of parliament. The
Constitution as a source of law is one of paramount importance in the Commonwealth Caribbean
as it represents the independence that these nations gained from their colonial masters. After these
countries broke their shackles from colonialism, there was a demise in the doctrine of
Parliamentary Sovereignty and evidence of the advent of a written constitution existed. Antoine
defined the Constitution as a “body of law containing the rules which determine the structure of
the State and its principal organs. This body of law is upheld and maintained because of its
adherence to Constitutional Supremacy. This supremacy is evident in the Commonwealth
Caribbean because of the degree of law making power granted to Parliament which has to conform
to the constitution. However, although the constitution is supreme, it appears to be accommodating
to other sources of law such as the common law and international law and especially the saving
law clauses.

Parliament has been granted power by the Constitution to make laws for the “peace, order and
good government of the land. However this power, as stipulated by the constitution is subject to
the provisions of the constitution. Article 8 of the Guyana Constitution provides that “this
Constitution is the supreme law of Guyana, and if any other law is inconsistent with it that other
law shall, to the extent of the inconsistency, be void.” This therefore means that the law of the
constitution is much higher than any other law including laws made by Parliament and as a
guardian of the constitution, the courts have the power to strike down inconsistent laws. Collymore
v A.G has celebrated the principle of Constitutional supremacy. In this case, members of a trade
union moved to the court to declare that an act passed by parliament abrogated or infringed their
constitutional right to strike. Wooding C.J contended that parliament would be acting ultra vires if
they make laws in which the constitution forbids. He further went on to say, “No one, not even
parliament can disobey the Constitution with impunity. It can be seen through Collymore v A.G
that the constitution must be obeyed and must remain supreme and as such, law making bodies
must make laws that are in the parameters of the constitution, other wise they would be acting
beyond their scope of power.
Similarly, in Hinds v The Queen, Lord Diplock reaffirmed the supremacy of the constitution by
highlighting Parliamentary limits in the law making process. He asserted that the duty of the court
is to ensure that parliament acts with the powers granted by the Constitution.

Cummings J in IRC v Lileyman, gave emphasis to the written constitution and described it as
providing the organic or fundamental law with reference to which the validity of laws enacted by
the legislature are to be tested and that the laws enacted by the legislature cannot transgress or
violate the provisions of fundamental law. This case concretizes the fact that the constitution is not
meant to be violated and emphasizes the point of its supremacy.

Although the constitution is supreme and does not tolerate inconsistent laws made by parliament,
it is important to note that Parliament is given the power to alter any of the provisions of the
constitution. However. this alteration, must conform to the requirements for change that are set out
in the constitution. Again, we can see that the constitution is always expected to be supreme and
must be abided by.

Furthermore, the Constitution, though supreme, seems to conform or is influenced by the common
law. Wooding C.J identified this issue in Collymore v A.G where he asserted that the constitutional
provisions protecting trade union rights, by providing the rights to form and join a trade union and
freedom of assembly, did not include the right to strike. This was so because at common law, there
was no right to strike and since most Commonwealth Caribbean constitutions codified existing
common law, it was impossible for there to be the existence of laws independent of those at
common law.

The Bills of Rights provisions can be seen as a replica of International law and these rights
provided in this provision is upheld. As it relates to saving law clauses, the Privy Council in
Nasralla v DPP found that there was a conflict between existing laws and new Bills of Rights.
The Privy Council declared that the fundamental rights to which are enshrined in the new Jamaican
Constitution were already secured to the people of Jamaica. In interpreting the saving law clause,
the court found that rights and freedoms under the new constitution were subject to the existing
laws. This means that the new written constitution was not deemed as “supreme” but rather the
existing law held this function. Evidently, we can see the constitution does not hold on to the
premise that it is indeed supreme.
In summation, the constitution in the commonwealth Caribbean is evidently seen as the Supreme
law of a particular Jurisdiction. Parliament has the authority to make laws which must match or be
consistent with the constitution otherwise the guardian of this body of law will interject in an effort
to strike down that inconsistent law. However, the common law, bills of rights emanating from
International law and the saving law clauses have to some degree defy the fact that the constitution
in the Commonwealth Caribbean is supreme. Notwithstanding this, however, the constitution
remains the grandnorm of any society and the supreme law of the land.