Commonwealth Caribbean Public Law

Albert Fiadjoe

• Publisher: Routledge-Cavendish
• Year: 2020
• ISBN:
  9781000159356
• Edition: 3
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Taking a critical look at the major areas of constitutional and administrative law, Commonwealth Caribbean Public Law places a firm emphasis on the protection of citizens' rights and good governance.

The third edition of this book builds on the success of the previous two editions, setting-out the established legal principles through Caribbean cases, along with critique and commentary of the law where appropriate. Contemporary issues and changes in Caribbean public law are addressed including: the refining of the rules governing judicial review; recent cases dealing with the death penalty; and the likely impact on CARICOM initiatives on the rights of citizens.

PART I

THE AMBIT OF PUBLIC LAW

CHAPTER 1

PUBLIC LAW DEFINED

INTRODUCTION

Public law may be defined broadly or narrowly. Broadly defined, it encompasses:

All law dealing with relations between an individual and the state or between states and the organization of government, i.e., criminal, administrative, constitutional and international law.¹

Another definition identifies public law as:

The part of the law which is concerned with the state in its sovereign capacity, including international law and criminal law.²

And Black’s Law Dictionary³ defines public law as:

A general classification of law, consisting generally of constitutional, administrative, criminal, and international law, concerned with the organization of the state, the relations between the state and the people who compose it, the responsibilities of public officers to the state, to each other, and to private persons, and the relations of states to one another.

Narrowly defined, however, public law may be regarded as the combined rules of constitutional and administrative law, focusing on the relationship between the courts and the executive and legislative branches of government. In this sense, our focus naturally rests on the role of judicial review in the constitutional and governmental framework of the English-speaking Commonwealth Caribbean. Even with this narrow definition, it must be pointed out that public law is a large subject and no book can adequately do justice to its subject matter.

The orthodox view used to be that public law did not exist in a common law system, but that view is now passé. The modern view is that public law encompasses such distinct components as constitutional and administrative law, criminal law and tax law. But a simple way of approaching public law for our purposes is to conceive of it as the body of law which deals with the powers and duties of government as such, but more particularly as the area of law which provides protection of the citizen against the enormous power of the State. This protection is offered by the courts using as their principal tool the power of judicial review.⁴

As one writer has put it:

The general trend in this century towards the rapid growth (particularly in developing countries) of the executive power of government, the Leviathan of which Thomas Hobbes wrote, has come to be accepted as an inevitable, and indeed, necessary consequence of the increasingly complex nature of modern society … The circumstances of our history, namely, the fact of colonial rule with its obvious implications for the structure of the economy, have placed upon successive governments since independence the rather formidable task of achieving in the shortest possible time a meaningful level of economic development.

… In the quest for rapid economic development, a number of administrative institutions have been established … If the demands of economic development dictate that the government and its allied institutions be endowed with extensive powers, including discretionary powers, they also give rise to the compelling necessity to devise workable limits on these powers.

From this standpoint, judicial review … assumes considerable importance.⁵

In the broadest sense, the terrain that is referred to as public law is an undulating one. It straddles three principal domains. First, it covers those essential areas of the law which are concerned with the establishment, organisation, powers, duties, functions and procedures of the major organs of the State. These organs may include institutions, functionaries and agents exercising or purporting to exercise some constitutional, statutory or common law power. Second, it covers the terrain of possible avenues which may be available to a person prejudiced or aggrieved by the exercise of such power to challenge such action and to seek redress in court. Third, it covers the procedure for vindicating such redress and the possible remedies that may be obtained therefor.

Because this book adopts a dysfunctional approach to the subject of public law, it will not cover the whole gamut of topics normally discussed under the subject. Part of the justification for this approach has been the desire to raise contemporary issues in Caribbean public law rather than to replicate existing texts. This is not to deny that the Caribbean region has seen phenomenal growth and development in public law in many areas. Rather, it is to highlight the fact that most of the critical issues that lie at the intersection of law and politics which go to the protection of the citizen’s rights have been raised in Caribbean public law litigation during the last four decades or so.

Undoubtedly, certain historical factors greatly influenced the development of public law. In the Caribbean, just like in England, the prime motivator was the great and intense social legislation which followed two world wars. Ideas of freedom and human rights were then prevalent. They still are. State policy was geared to creating the welfare society, free of oppression and totalitarian tendencies.⁶ This growth of the welfare State led to a great increase in the exercise of administrative powers by the State. Such welfarism led to some understandable tension with the notion of human rights.

In the Caribbean, the development of public law was inextricably linked with the general colonial law and UK law which applied throughout the region. But in terms of a peculiarly local development, three stages could be identified in this development. The first was traceable to the Moyne Commission Report.⁷ This Royal Commission was set up under the chairmanship of Baron Moyne ‘to investigate social and economic conditions in Barbados, British Guiana, British Honduras, Jamaica, the Leeward Islands, Trinidad and Tobago and the Windward Islands’. In a 483-page report, the Commission made wide-ranging recommendations touching on several matters of public concern, not excluding social and political advancement. This saw the creation of various public bodies to administer the recommendations. The second stage could be traced to the fight for political independence in the 1950s. The march to responsible government meant gradual devolution of power to the territories. This era saw the establishment of various administrative bodies dealing with matters such as agriculture, industries, tourism and housing. Independence in the 1960s marked the third stage in the development.

With independence came new constitutions with guaranteed fundamental human rights provisions which gave the fillip to establishing Caribbean public law on firm and secure foundations, anchored on the anvil of judicial review.⁸ Perhaps this last statement needs to be clarified. All Caribbean States had written constitutions long before independence in the form of Letters Patent, Royal Instructions or some Statutory Instrument. Indeed, fundamental rights provisions existed in some territories before independence.⁹ But it is accurate to say that the spur to the rapid growth and development of Caribbean public law has been provided by the written constitutions which came with independence. Today, public law litigation abounds everywhere – from the cricket field¹⁰ and government departments¹¹ to the heart of the judiciary itself.¹² Undoubtedly, there has been a dramatic transformation in the political, constitutional and administrative landscape of the Commonwealth Caribbean, and Caribbean public law is increasingly giving recognition to and appreciation of that milieu by focusing on the type of law that would advance the goals of development.

It is no wonder then that the ‘novelty’ of public law is now giving rise to a new culture and an increasing awareness of its close and continuing connection with the political process. Public law litigation in the Commonwealth Caribbean is thus raising a number of fundamental issues about the role and effectiveness of law as a tool of public administration and about the basic commitment of government to the rule of law.¹³ One cannot but agree with the proposition that one of the most acute contemporary public policy challenges today is to bring fairness to the process of administration by devising the means to control the rational exercise of discretion and also to provide an efficient scheme of legal remedies to rein in the abuse of power by public bodies and officials.

THE RISE OF PUBLIC LAW

The common law has always sought to nurture and develop rules of public law on its own, inadequate though that methodology has been. The development of the law on a case by case basis is usually haphazard and generally unco-ordinated as illustrated, for example, by the development of natural justice that predated the decision in Ridge v Baldwin.¹⁴ Nevertheless, judicial review of unlawful administrative action was always permissible by the sheer prescriptions of the rule of law.¹⁵ Many writers also attest to the prolific use to which the tool of judicial review has been effectively employed by the courts at common law, even if the original declared intention of the courts was merely to fulfil the intention of Parliament.¹⁶

However, it is to the constitutions, which were the handmaidens of independence, that we must look for the real reasons behind the rise of Caribbean public law, though not to the exclusion of political factors such as a better educated populace, greater awareness of political rights and sheer example forced on a globalised world by the might of information technology.

Of the constitutional factors, perhaps the most important is the supreme law clause. By virtue of that clause, any legislative or administrative act or omission in conflict with the constitution is void pro tanto. Its effect on the development of Caribbean public law has been phenomenal. Indeed, the case of Collymore v AG,¹⁷ which dealt with a constitution that had no express supreme law clause, is said to have established the doctrine of the supremacy of the constitution over parliamentary supremacy beyond recall, thus blazing an undying trail while at the same time exposing a great divide between UK and Caribbean public law.¹⁸ Collymore itself made no such express assertion of constitutional supremacy over parliamentary supremacy. Indeed, in his judgment, Fraser JA said that ‘no question of sovereignty of Parliament arises … Parliament can amend the Constitution only if the constitutional prescriptions are observed and providing Parliament fulfils the requirements of the Constitution its power is sovereign and supreme’.¹⁹ Yet, the logical effect of Collymore is to accept the fact that Parli...