Our Inherent Constitution

AuthorTracy Robinson
Our Inherent Constitution
Tracy Robinson
1. Introduction
The Caribbean Court of Justice’s (CCJ    AG v
Joseph,1 an appeal in a death penalty case from Barbados, invites us,
albeit not plainly, to look beyond the texts of Caribbean constitutions
and to have regard to unwritten principles, especially the rule of law,
as a fundamental source of Caribbean constitutional law. The Court
held that capital defendants have a legitimate expectation that their
petitions before international human rights tribunals would be dealt
with before carrying out the death sentence. The joint decision of de la
          
the ‘inherent jurisdiction’ of the superior courts to grant constitutional
relief to give full effect to the ‘protection of the law.’ Wit J had a similar
tack. He described the constitutional text as ‘merely a relection of the
fundamental right to the protection of the law.’2 The CCJ’s analysis
suggests that the ‘protection of the law,’ an aspect of the rule of law, is
elevated to an implied justiciable constitutional norm.
This chapter starts where many discussions of Caribbean
constitutional law do, with the doctrine of constitutional supremacy.
But here with a caution that this doctrine cannot resolve all important
    
law in Caribbean constitutional law as a precursor to examining Joseph’s
analysis of the right to the protection of the law. Since Hinds v R3 lays
the strongest foundation for Joseph’s provocative talk of an ‘inherent’
constitution, some attention is paid to the lessons we can learn from
it and its progeny. Next are some less noticed decisions that begin to
take seriously the idea that Caribbean constitutions have a normative
foundation, which is a critical starting point for discussion around
         
2. Ibid 20 (emphasis added).
Our Inherent Constitution
fully why treating the rule of law as an unwritten constitutional norm
can be a good development for Caribbean constitutional law.
2. Supremacy’s Inadequacies
Early Caribbean public law scholarship shed light on the
distinctiveness of postcolonial Caribbean public law: the paradigm shift
brought about by constitutional supremacy and justiciable bills of rights,
the demise of parliamentary sovereignty as it had been known,4 and the
basis and scope of judicial review, both of legislation5 and administrative
action.6 Professor Albert Fiadjoe has offered up a public law that has
come of age, a revolution in Caribbean public law as a result of the
written constitutions and new judicial review legislation.7
But as jurists underlined the primacy of the written constitutions
they faced a dilemma: how seriously should one take supreme laws
that marginalize protection of fundamental rights with savings law
clauses8 and explicitly exclude the possibility of judicial review through
ouster clauses.9 The texts of Caribbean constitutions have internal
contradictions that cannot be resolved satisfactorily by referring to
     
apparently unenforceable opening sections, generous savings of existing
laws and copious limitations on the actual rights,’ Arif Bulkan bluntly
concludes that Caribbean bills of rights are schizophrenic.10 We evidently
need modes of interpretation that honour the commitment to fundamental
rights and freedoms in the bills of rights without being entirely undone
by the textual restrictions within them.
4. See F. Alexis, ‘The Classical Doctrine of Parliamentary Sovereignty as a Current Issue in West
Indian Law’ (1997) Guy LJ 41.
5. See A.R. Carnegie, ‘Judicial Review of Legislation in the West Indian Constitutions’ (1971) PL 276,
F. Alexis ‘The Basis of Judicial Review of Legislation in the New Commonwealth and the United
States of America: A Comprehensive Analysis’ (1975) 7 Lawyers of the Americas 567.
6. F. Alexis, ‘Aspects of Judicial Review of Administrative Action in the Commonwealth Caribbean in
comparison with Great Britain’ (DPhil thesis, University of Cambridge 1980).
7. A. Fiadjoe, ‘An Overview of the Public Law Revolution in the Commonwealth Caribbean’ (1992) 21
Anglo-American LR 310. An earlier version of this paper was presented at the special UWI Faculty
of Law Faculty Workshop Series 2007–8 in honour of Prof Albert Fiadjoe.
8. See F. Alexis, ‘When is an Existing Law Saved?’ (1976) PL 256.
9. See E. Thomas, ‘The Application of an Ouster Clause in the Constitution and the Public Service
A. Fiadjoe, ‘Judicial Approaches to Constitutional and Statutory Exclusion of Judicial Review
in Commonwealth Caribbean Public Law’ in G. Kodilinye and P. Menon (eds), Commonwealth
Caribbean Legal Studies (Butterworths, London 1992) 161.
10. A. Bulkan, ‘Judicial Independence as an Indispensable Feature of the Rule of Law and Democracy:
Implications for the Commonwealth Caribbean,’ in David S. Berry and Tracy Robinson (eds),
Transitions in Caribbean Law: Law-Making, Constitutionalism and the Convergence of National
and International Law (The Caribbean Law Publishing Co, Kingston 2013).

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