Judicial Independence as an Indispensable Feature of the Rule of Law and Democracy: Implications for the Commonwealth Caribbean

Full text

Judicial Independence as an
Indispensable Feature of the Rule of
Law and Democracy: Implications
for the Commonwealth Caribbean
Arif Bulkan
1. Introduction
Although the Commonwealth Caribbean is notable among the countries
of the former British Empire for the stability of its institutions and the
levels of accountability in government, like every generalization this one
too is subject to exceptions. In many, if not all of the territories, there have
been occasions following political independence where constitutionalism
has been threatened – sometimes dramatically as in Grenada and
Guyana–butmoreoftenthannotinquotidianandlessobviousfashion,
as newly independent governments have tested the limits of their power.
Resulting tensions with educated and informed populations are most
readilyidentiable inlitigation underthe constitutionalbills ofrights,
the outcome of which is obviously dependent on the degree to which
judges are able and prepared to scrutinize both legislative and executive
acts and thereby hold governments to account. The mechanisms by
which judiciaries have been insulated against interference and how
these actually operate in practice are therefore crucial, as they impact
signicantlyontheability and willingnessofjudges to full thisrole,
and, by extension, on the measure of constitutionalism that exists in a
society.
A judiciary is, obviously, only as good as its individual members, but
the general level of independence depends not only on the individual
judges themselves, but also on the conditions under which they operate
and the protection conferred on their ofces. The latter factors have
been described by Allen SJ as the ‘institutional dimension’ of judicial
independence, as distinct from the individual dimension which relates
to the integrity of the specic judge.1 Both dimensions, however, are
equally dependent on a number of key factors protected by Caribbean
constitutions, which can be broadly categorized as (i) the procedures for
1. R v Jones (2007) 72 WIR 1 (SC Bah) 4 [10].
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Transitions in Caribbean Law
selecting judges, (ii) the conditions under which the judiciary operates,
and (iii) the jurisdiction of the courts themselves.
But there is a broader and somewhat elusive issue, namely whether
these written provisions comprise the total of the constitutional guarantee
of judicial independence, or whether they are simply manifestations of
a deeper, underlying philosophy or natural moral order. This chapter
will show that the bare constitutional provisions have often not been
enough to achieve their stated goals but have been subject to evasion
andonoccasionevensubversionoroutrightmanipulation.Reectingon
the constitutionalization of human rights norms in the Commonwealth,
Professor Albert Fiadjoe unearths a gap between ethos and literalism,
concluding that the ‘mere re-statement or absence of human rights
provisionsisnotreallyanadequateindexorfairmeasureoftheenjoyment
of human rights.’2 Another distinguished commentator, Professor Keith
Patchett, has made similar observations, attributing the disconnect
partly to the lack of autochthony in the norms that were formulated in
the independence constitutions. In the process of constitution-making,
Patchett argues, the drafters failed to consider whether the ‘underlayer’
necessary for the effective operation of these norms was present.3
An independent judiciary is key in the context of these realities, for
though itself partly unaccountable, the judiciary is an acknowledged
bulwark against executive excess and in this way can hold politicians
to account. But as with the itemization of human rights norms and
standards, there are limits to what the text itself can accomplish by way
of securing an independent judiciary, as will be demonstrated below.
It is here that the true potential of implicit constitutional norms is
most evident, for where the text is lacking, resort to the constitution’s
underlying values can help to promote the independence of the judiciary
– the latter being vital to secure the ultimate goals of democracy and
adherence to the rule of law.
2. Procedures for Selecting Judges
Procedures for selecting judges are fairly standard across the region,
with only minor variations among individual territories. Generally,
appointments are made by the Head of State acting on advice, but it
2. A. Fiadjoe, ‘Human Rights and Comparative Constitutions – A Non-Traditional View’ (paper
presented at a conference in Mahwah, New Jersey, USA, June 1990 on Human Rights and
Comparative Constitutions).
3. K. Patchett, ‘The Legal Inheritance of the Smaller Commonwealth States’ (1989) 8 Commonwealth
Jud J 16.
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Judicial Independence as an Indispensable Feature of the Rule of Law
is in the source of that advice that the differences are to be found. In
Barbados, all appointments to the Supreme Court are made on the
recommendation of the Prime Minister after consultation with the Leader
of the Opposition,4 but in many of the other territories a distinction
is made between the Chief Justice and the remaining judges on the
Supreme Court or High Court. A typical approach is that followed in
Jamaica, where the Chief Justice is appointed by the Governor General
acting on the recommendation of the Prime Minister after consultation
with the Leader of the Opposition,5 while puisne judges are appointed by
the Governor General on the advice of a Judicial Services Commission.6
Ultimately, the strategy was to minimize the role of the executive in
theprocess,hencetherequirementofconsultationwiththeLeaderofthe
Opposition as in Barbados, or more meaningfully as adopted elsewhere,
the creation of a specic Commission to make recommendations. For
countries with the latter approach, the composition of this Judicial
Services Commission is therefore critical, given the integral role it plays
intheprocessofappointments.Whileitisdifculttondanormacross
the Caribbean, generally this Commission is composed of ve to six
members, chaired by the Chief Justice and for the remainder comprising
one other Judge recommended by the Chief Justice, the Chairman of the
Public Service Commission, and two or three members appointed by the
Governor General on the Prime Minister’s recommendation.7 The success
of these procedures in achieving their desired outcome depends heavily
on the integrity of various ofce-holders, such as the Prime Minister,
Chief Justice and various individuals appointed to the Commission.
A. Political Control of the Selection of the Head of the Judiciary
Nowhere in the Caribbean are the tensions between executive and
judiciary better highlighted than in Guyana, where successive post-
independence governments have displayed a shrewd appreciation
of the crucial role of selection procedures for fashioning a compliant
judiciary. When the remaining avenues of appeal to the Privy Council
were abolished in 19738 and the Guyana Court of Appeal became the
country’s nal appellate court, the Burnham regime (which had just
4. Barbados Constitution 1966 s 81(1).
5. Jamaica Constitution 1962 s 98(1).
6. Ibid s 98(2).
7. See ibid s 111.
8. Constitution (Amendment) Act 1973-19 s 4.
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installed itself by a massively rigged election)9 took the opportunity to
create the position of Chancellor of the judiciary. On the surface, this was
presented as mere nomenclature – instead of a President of the Court of
Appeal (as in Jamaica), Guyana would have a Chancellor. The motive for
the position, however, lay in a far more sinister and corrupt objective.
At the time the Chief Justice was Sir Joseph Luckhoo, a Guyanese of
East Indian descent and a jurist of unimpeachable character, on both
counts unacceptable to the increasingly dictatorial Forbes Burnham.
Burnham’s solution was thus to create this new position of Chancellor
as head of the judiciary, to which he appointed Sir Kenneth Stoby, then
Chief Justice of Barbados. Through these machinations – all effected
through supercially lawful procedures – Luckhoo CJ was effectively
demoted while Burnham openly signalled the role he envisaged for the
judiciary in the post-colonial era.
Almost 30 years later, and despite the return of free and fair elections
or democracy in Guyana, a similar drama came to be played out once
again. Upon the retirement of Cecil Kennard and his replacement by
Madam Desiree Bernard as Chancellor of the judiciary, the next Judge
in line for the position of Chief Justice was Madam Justice Claudette
Singh, but she was passed over in favour of Justice Carl Singh. There are
advantages to selecting only the best from an available list of candidates
for promotion to a higher position, but given that the overlooked Judge
had 14 years’ experience while the favoured one possessed a mere six,
such a move could be justied only by reason of uncommon brilliance
in one or unacceptable incompetence in the other – neither of which
seemed to be the case. Instead, the barely disguised facts revealed a
rather more sordid explanation. Claudette Singh is of mixed ethnicity
and immediately prior to this vacancy had ruled against the People’s
Progressive Party/Civic (PPP/C) government in a petition challenging
the 1997 election.10 In her decision, Claudette Singh invalidated the
electoral results on certain procedural grounds, and though she applied
the doctrine of necessity to validate all ofcial acts in the intervening
period, the result was a public humiliation for the PPP/C which had
9. It is widely acknowledged that in order to retain power, the PNC rigged successive elections in
1973, 1980 and 1985, as well as a referendum in 1978 by which the Republican Constitution
was foisted on Guyana: P.C. Hintzen, ‘Creoleness and Nationalism in Guyanese Anticolonialism
and Postcolonial Formation’ Small Axe 8 2004: 106, 118; A. Morrison, Justice: The Struggle for
Democracy in Guyana, 1952–1992 (Red Thread Women’s Press, Georgetown 1998) 114–29; M.
DeMerieux, Fundamental Rights in Commonwealth Caribbean Constitutions (Faculty of Law
Library, Cave Hill 1992) 17–18. Note also Professor DeMerieux’s tongue-in-cheek comment
regarding the 1978 referendum: ibid 10.
10. Perreira v Chief Election Ofcer (unrep) 15 Jan 2001, No 36-P/1998 (HC Guy); see also Singh v
Perreira, Jagan v Perreira (18 Nov 1998) GY 1998 CA 8 (Guy).
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been in charge of the election as the incumbent government. For this,
Claudette Singh incurred the lasting wrath of the PPP/C. By contrast,
Carl Singh is of East Indian descent, and more importantly had by then
also demonstrated his loyalty to the administration in a critical and
extremely sensitive case.11 Thus Claudette Singh was rejected for the
very reason that Luckhoo CJ had been passed over 30 years before to
head the Judiciary, that is, the unabashed preference of both regimes for
‘one of their own.’
B. The Inefcacy of Consultation Requirements
These tribal politics are not conned to Guyana, and have been
paralleled elsewhere in the Commonwealth Caribbean. In most countries,
thedegreeofinuenceenjoyedbytheexecutiveisasaresultoftheinherent
vagueness of the requirement of ‘consultation’ prior to making these
appointments.Asopposedtothe requirementof ‘consent,’consultation
imposes a standard that can be easily met, and functions at best to give
asupercialglossontheselectionprocess.Itdoesnotassuremeaningful
participation and still less does it ensure that input once received will be
inuential.In practice,even wherethere hasbeen afailuretoconsult,
Caribbean courts have been slow to acknowledge any irregularity in
the process. In Whiteld v AG,12 the issue under consideration was the
validity of the extension of term granted to the incumbent Chief Justice
of The Bahamas, who had reached the constitutional age for retirement.
The Prime Minister had in fact raised this issue with the Leader of the
Opposition before making the recommendation to the Governor General,
but he did so in passing in a letter and only after he had already discussed
the matter with the candidate himself and agreed that the latter’s term
wouldbeextended.On a subsequentchallengebrought by theLeader
of the Opposition, the trial judge viewed the belated consultation as a
mere matter of procedure, holding that there was no requirement for
11. Just prior to his meteoric elevation Carl Singh J ruled in the government’s favour in Chue v AG
(unrep) 27 Jan 2000, No 66-M/1998 (HC Guy), which involved a challenge to the Revenue Authority
created by the government to consolidate the customs and excise and inland revenue departments
and by which public servants were turned into mere employees. Carl Singh J upheld the validity
ofthenewlycreatedAuthoritydespitevery seriousquestions asto itslegitimacy. Thisdecision
has not been favourably received by commentators. See, for example, S. Fraser, ‘The Evolution of
Constitutional Protection of Fundamental Rights in Guyana’ (2001) 11 Carib LR 89, 103, and even
though the applicants’ appeal was dismissed by the Guyana Court of Appeal [see Chue v AG (2006)
72 WIR 213 (CA Guy)], the latter decision has also garnered trenchant criticism: L. Jackson, ‘The
Ideology of Judicial Decision-Making in the Commonwealth Caribbean: Interrogating the Doctrine
of Separation of Powers.’ Paper presented at the Faculty Workshop Series 2008–9, Conversations
betwentheCCJandtheFacultyofLawUWI,Trinidad(November2008,unpublishedpaperonle
with author).
12. (1989) 44 WIR 1 (SC Bah).
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such consultation to take place before the judge in question reached
retirement age. This was possibly correct on one interpretation of an
admittedly opaque provision, but there was more at stake here than
mere chronology. To dismiss as de minimis the Prime Minister’s failure
to consult with the Leader of the Opposition prior to discussing the
extension with (and giving his agreement to) the Chief Justice, as the
trial judge did, demonstrates clearly howtherequirementofconsultation
is a mere formality at best and farcical at worst.
InBelize,wheretheconstitutionactuallyspecieswhatconsultation
is to entail, being ‘a genuine opportunity to present his or her view
before the decision or action…is taken,’13 such particularization was still
not enough to restrain the executive. On the eve of national elections
scheduled for 27 August 1998, the government hastily made several
appointments to the judiciary, including that of Chief Justice, without
consultingtheLeaderoftheOppositionasconstitutionallyrequired.In
fact, the Opposition Leader was contacted prior to the appointments, but
even as the parties were exchanging correspondence as to a mutually
convenient date to meet, a Chief Justice was sworn in on the day
before the elections even though there had been no consultation. A
constitutionalchallengesubsequentlybroughtagainsttheappointment
oftheChiefJusticesucceededonthegroundthattheprocedurespecied
in the constitution had not been followed; thus, there was never a valid
appointment to begin with.14 Meerabux J had strong words for the Prime
Minister’s timing of the judicial appointments:
Such a course of action is unheard of in a parliamentary democracy
based on the Westminster model where the government of the day
after the issue of the Writ of Elections acts merely in a caretaker
capacity and refrains from taking any major decisions. To my mind,
to appoint a Chief Justice substantively just a day before the general
elections makes a mockery of parliamentary democracy.15
One is driven to conclude from these events that constitutional
provisionsbythemselvesarenotsufcienttorestrainanexecutivebent
oncreating asympatheticjudiciary,andcertainlynotanythatrequire
– as did Guyana’s and many others in the Commonwealth Caribbean
– mere ‘consultation’ with the Leader of the Opposition. Ultimately,
consultation imposes the most minimal of requirements, one in which
process defers to personality – that is to say, political nepotism in
appointments can only be avoided if those holding the power are prepared
13. Belize Constitution 1981 s 97(1).
14. Mohammed v AG (unrep) 2 Feb 1999, No 73 of 1999 (HC Bze).
15. Ibid [as quoted in Sir Fred Phillips, Commonwealth Caribbean Constitutional Law (Cavendish
Publishing Ltd, London 2002) 288].
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to exercise it responsibly and honourably. The solution adopted by many
of the Commonwealth Caribbean countries in vesting the responsibility
for appointments in a Judicial Services Commission is also illusory, since
members of the Commission are appointed by the Prime Minister and
invariably end up being persons sympathetic to his or her cause and
prepared to do his or her bidding.
C. Consent Requirements
In recognition of, and partly to address, these deciencies, the
relevant provisions of the Guyana Constitution governing appointments
to the higher judiciary were amended in 2001. Whereas under the 1980
arrangements the appointment of the Chancellor and Chief Justice could
be made by the President after consultation with the Minority Leader,
under the new procedure the actual agreement of the Leader of the
Opposition became necessary.16Requiringconsent,however,ispremised
on the existence of a mature political climate, and the experience
elsewhere in the Commonwealth Caribbean was not encouraging. In
the OECS, the appointment of the Chief Justice of the Court of Appeal
requiresconsensusfromthemembercountries,arequirementthatwas
toproveinsuperablethelasttimethatavacancyarose inthisofce.A
protracted impasse ensued because Brian Alleyne, the candidate next in
line, was unpalatable to Grenada, one of the OECS member states. In one
version of the events, the root of the candidate’s unpopularity with the
Grenada government lay in decisions rendered while he was a resident
judge on that island – decisions no doubt adverse to the government.
Despite overwhelming support from lawyers practising before the court
as well as regional bar associations, the Grenada government remained
intractable; Alleyne was never appointed as Chief Justice and retired as
Acting Chief Justice.17
In Guyana, vacancies in the top judicial positions opened up for the
rst time after the 2001 constitutional amendments when Chancellor
Desiree Bernard resigned in March 2005 to take up a seat on the
Caribbean Court of Justice. Claudette Singh was by then the longest
serving judge, but Carl Singh was now senior to her having previously
been appointed Chief Justice. Like before, he remained the President’s
choice, but the Leader of the Opposition favoured Claudette Singh,
and as it turned out no agreement could be reached. In this battle over
the Singhs, the two functionaries responsible for making the decision
16. Guyana Constitution 1980, art 127(1) as amended by Act No 6 of 2001.
17. ‘Brian Alleyne is Snubbed’ Grenada Today, 10 February 2007 <http://www.belgrax.com/
gtoday/2007news/Feb/Feb10/Brian-Alleyne-is-snubbed.htm> accessed 27 Jul 2010.
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obdurately stuck to their respective choices and at the time of writing –
more than four years after the opening of the vacancy – the position of
Chancellorremainssubstantivelyunlled.
The pendulum, then, had swung to the other extreme in Guyana – from
poor governance to none at all. As experience has shown both in the OECS
andnowGuyana,requiringconsensus priortomakinganappointment
canbeequallycounter-productive,forinapoliticallyimmaturesocietyit
is a recipe for paralysis. In the meantime, pursuant to his power in article
127(2)–whichonlyrequires‘meaningfulconsultation’withtheLeaderof
the Opposition – the President appointed Carl Singh to act as Chancellor
(thereby underscoring the meaninglessness of that requirement). One
month later, the President announced publicly that he had established
a search committee to identify a suitable candidate for the position of
Chief Justice. This made it clear that Claudette Singh had no future
in the Guyana judiciary; but personalities aside, this announcement of
asearchcommittee betrayed aagrantdisregard oftheconstitutional
procedures. This was exposed by the Leader of the Opposition who
claimed that the President refused to discuss the names of his candidate
for Chief Justice or even to reveal the persons on the search committee.
If true, this was not even ‘consultation,’ much less a process designed to
achieveagreementasisconstitutionallyrequired.18
After more than a year of this impasse, with Carl Singh performing
the functions of both Chancellor and Chief Justice, public interest
litigation was initiated in which a determination was sought as to the
constitutionality of one person simultaneously holding both ofces,
as well as a declaration that the appointment of Carl Singh CJ to act
as Chancellor had become unconstitutional by his so continuing to
act for more than a year. In a decision handed down one year later,19
thetrialjudgeheld on therstpoint that the spiritandintent of the
Constitutiondoesnotpermitthe simultaneousholding oftheofcesof
Chancellor and Chief Justice. Thus, while performing the functions of
Chancellor pursuant to article 127(2), Carl Singh could not at the same
time function in his substantive role as Chief Justice. In arriving at this
decision, Ramlal J approached the issue as a simple one of construction,
examining a number of constitutional provisions. From article 123(1),
18. R. Corbin, ‘PNCR Letter to Pres Jagdeo on the Issue of the Constitution of Guyana in Relation
to The Judiciary,’ People’s National Congress Reform Press Release, 8 July 2007 <http://www.
guyanapnc.org/MediaCentre/PressRelease/PNCR%20Letter%20to%20Pres.%20Jagdeo%20
on%20the%20Issue%20of%20the%20Constitution%20of%20Guyana%20in%20Relation%20to%20
The%20Judiciary.html> accessed 27 Jul 2010.
19. Committee for the Defence of the Constitution v AG (unrep) 16 Nov 2007, Civ Act No 993-S/A of
2006 (HC Guy).
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which states that the Supreme Court ‘shall’ consist of a Court of Appeal
and a High Court, and article 123(2) which states that ‘each of those
courts shall be a superior court of record,’ Ramlal J deduced a clear
intention to provide separate and distinct courts; while from article 124,
which sets out the composition of the respective courts, he found that the
ofcesofChancellorandChiefJusticemustbeheldbyseparatepersons.
Ramlal J refused the second declaration, however, holding that once
anappointmenttoanyofcewasregularlymade,itcouldnotthereafter
become unconstitutional merely by its holder performing functions
outside of the statutory mandate. Somewhat obscurely he added that
the functions can become unlawful, but not so the appointment itself.20
Nonetheless, he did conclude that the ‘spirit’ of the Constitution did not
envisagesuchlongdelays in llingtheseofces, and he heldthatthe
failure to appoint a substantive Chancellor for such a prolonged period
constituted a violation of article 122A(1) of the Constitution by the
President and the Leader of the Opposition. That provision reads:
All courts and all persons presiding over the courts shall exercise
their functions independently of the control and direction of any
person or authority; and shall be free and independent from
political, executive and any other form of direction and control.
Ramlal J rejected an argument based on the protracted length of time
in which the relevant politicians had failed to come to an agreement.
According to him, delay was irrelevant since neither the Constitution
nor any other law laid down any time limit for the period of an acting
appointment or within which agreement had to be reached on a successful
candidate.21 In so ruling, the judge adopted a very formalistic approach
to the dilemma since the mere absence of a time limit in the Constitution
for the making of a critical appointment could hardly be decisive. As
Professor Simeon McIntosh has argued, constitutional provisions are
not to be read univocally, that is to say provisions cannot be plucked
out and interpreted in isolation.22 This is entirely consistent with the
fundamental nature of constitutions and the dynamic approach called for
in their interpretation. The mere absence of a time limit in the text cannot
be an insuperable obstacle. What the judge ought to have considered
were factors such as the role of a constitution in establishing institutions
of government, the central importance of the judiciary under Guyana’s
uniquesocialistconstitutionwithitsenlargedexecutivepowers,andthe
20. Ibid 27.
21. Ibid 28–9.
22. S. McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (The Caribbean
Law Publishing Co, Kingston 2002) 254.
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Transitions in Caribbean Law
general principle of judicial independence at the root of all the detailed
provisions governing the appointment, conditions, and tenure of members
of the judiciary. In other words, the court could have legitimately been
guided by those implicit constitutional norms that promote the separation
of powers and, by extension, judicial independence, in order to invalidate
the acting appointment.
There is, besides, ample precedent elsewhere for looking beyond the
bare text. In Reference re Remuneration of Judges of the Provincial Court
(PEI), the Supreme Court of Canada struck down several provincial
measures reducing the salaries of provincial judges as unconstitutional
on the ground that they violated the principle of judicial independence.23
Various provisions in the text were invoked, but ultimately the
majority afrmed that judicial independence is ‘at root an unwritten
constitutional principle, in the sense that it is exterior to the particular
sections of the Constitution Acts.’24 Similarly, in the Guyanese case, the
trial judge could have legitimately found the situation complained of by
the applicants – an acting appointment in the head of the judiciary for
close to three years and continuing – to be unworkable, inimical to good
governance and in violation of the fundamental constitutional norm of
judicial independence.
D. Acting Appointments
One of the most effective guarantees of judicial independence is the
fact that judicial appointments are made until retirement, a condition
acknowledged by a high level colloquium of Commonwealth judges in
1998.25Thispermanency, saveforspecic situations inwhichremoval
may occur, insulates the ofce-holder from political pressure and any
obligation – real or perceived – to please the executive. By contrast, an
acting appointment places the judge in a perpetual state of probation,
and demands strength of character in order to rule fearlessly. Hanging
over the judge’s head is the unspoken possibility that rulings adverse to
thestatewouldresultinnon-conrmation.Asithasbeensuccinctlyput
by the Lord Irvine, Lord Chancellor of Britain, ‘If judges depend on the
goodwill of the government for their continuing (and here I would add
extended)employment, thentheymayndthemselvesunabletoresist
political or other improper interference in individual cases.’26
23. [1998] 1 SCR 3 (SC Can).
24. Ibid 83.
25. Reproduced in the Latimer House Guidelines. See J. Hatchard and P. Slinn (eds), Parliamentary
Supremacy and Judicial Independence: A Commonwealth Approach (Cavendish, London 1999) 20.
26. Quoted in Hatchard, ibid 34.
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209
Judicial Independence as an Indispensable Feature of the Rule of Law
Aside from these cases, the practice of long acting appointments in
Guyanaisnotconnedtosituationsofnecessitysuchasthisonewhere
agreement could not be reached – a fact regarding which the trial
judge could not have been unaware.27 In 2007, when this decision was
handeddown,astaggeringve outof atotalcomplement of11 puisne
judges were holding acting appointments. Two of those judges had by
then been acting in excess of ve years, one of whom retired in 2008
without ever being conrmed. Acting appointments for protracted
periods are generally inimical to fearless, independent performance.
Further, as pointed out by Lord Irvine, by subjecting the judge to the
pleasure of the executive for permanent employment, the judge’s ability
to render independent judgments is compromised. This is, therefore,
unconstitutional since judicial independence is explicitly provided for in
the Guyana constitution. Arguably, the position should be no different
elsewhere in the Commonwealth Caribbean where the constitutions
provide for this by implication.
Thus, despite the painstaking detail of Commonwealth Constitutions,
those provisions standing alone have been of limited value across diverse
jurisdictions in securing a neutral appointment process for judicial
ofcers.Thedifcultieshavebeencompoundedinthemorehighlydivided
societies where to the prevailing political immaturity one can add other
variables related to race and ethnicity. Appeals to implicit constitutional
norms or the core values underpinning the constitutions may therefore
have a valuable role to play in their interpretation, and ultimately in
promoting certain key goals such as judicial independence.
3. Conditions of Service of the Judiciary
Once appointed, even judges chosen for their perceived sympathies
may rise to the occasion and eschew partisan rulings. Such independence,
however, is possible only where a Judge’s tenure is secure, and
Commonwealth Caribbean constitutions contain various safeguards
to promote this objective. Thus, appointment to the higher judiciary
(onceconrmed,ofcourse)isalifetimeone,relinquishedinthenormal
courseonlyuponattaining a specicretirementage.28 The ofceitself
is protected, in the sense that it cannot be abolished while it has a
substantive holder.29 Most crucially, judges’ salaries are charged on
27. Thepracticeisasignicantprobleminthepublicserviceandonethatisconsistentlycondemned
by the unions. See ‘Appoint Acting Public Servants to Posts – GPSU’ Stabroek News, 28 December
2008 <http://www.stabroeknews.com/news/appoint-acting-public-servants-to-posts-gpsu/>
accessed 27 Jul 2010.
28. See, e.g., Barbados Constitution s 84.
29. See Jamaica Constitution s 97(3).
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210
Transitions in Caribbean Law
the Consolidated Fund30 and cannot be reduced to their disadvantage
whileinofce.31 This means, as it has been colourfully put elsewhere,
that judges are not reduced to the position of mendicants dependent on
executive largesse.
A. Post Retirement Extensions
Specic conditions are laid down for extending a judge’s tenure
following the attainment of retirement age – invariably dictated, as in
The Bahamas Constitution, to be for such period ‘as may be necessary
to enable him to deliver judgment or to do anything in relation to
proceedings’ already underway.32 Thus the omission to specify a xed
period as in other constitutions33 would not necessarily sanction open-
ended extensions, as these are mandated only for a stated objective. An
extensioninofceforwhateverperiodentitlestheofce-holdertoperform
allthefunctionsoftheofce,soitisasubstantiveandsignicantfacility.
For this reason, the Privy Council has held in relation to Trinidad and
Tobagothatextensionsbeyondthespeciedthree-monthperiodshould
not be entertained.34
B. Premature Termination of Tenure
Premature termination is possible only in specic situations –
invariablybeingthe‘inability to dischargethefunctions of [the]ofce
(whetherarisingfrominrmityofbodyormindoranyothercause)orfor
misbehaviour,’35 and only after a clearly detailed procedure is followed.
For most of the countries of the Commonwealth Caribbean with the
notable exceptions being Guyana and Belize, this procedure requires
the ultimate sanction of the Privy Council, and it involves a three-tiered
process involving (i) initiation by the Prime Minister or the Chief Justice,
depending on who is being investigated; (ii) the appointment of a tribunal
toinvestigatethequestionofremovalandtoadvisetheGovernorGeneral
whether or not to refer it to the Privy Council; and (iii) consideration of
the matter by the Privy Council, whose advice is to be followed by the
Head of State.36 Finally, these safeguards all enjoy varying degrees of
30. See ibid s 101(2).
31. See ibid s 101(1).
32. Bahamas Constitution 1973 s 96(2).
33. Forexample,as intheBarbadosConstitutionwhere atwo-yearlimitisxed [s84(1A)],orinthe
Trinidad and Tobago Constitution (s 136).
34. Sookoo v AG [1986] AC 63, 72, (1985) 33 WIR 338, 376 (PC T&T).
35. Barbados s 84(3), Jamaica, s 100(4).
36. Barbados s 84(4)–(5), Jamaica s 100(5)–(6).
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211
Judicial Independence as an Indispensable Feature of the Rule of Law
entrenchment in the constitutions, meaning that special parliamentary
majoritiesarerequiredforamendment.
The success of these provisions in ensuring an inviolable judiciary
possibly rests on two critical conditions – one being their entrenchment
intheconstitutions, which meansthata signicant degreeofpolitical
consensusisrequiredinordertoeffectanychanges,andthesecondbeing
the retention of ultimate control by the Privy Council. Still, despite these
safeguards judges have not been entirely immune from interference, and
constant upheavals within the Trinidad and Tobago judiciary illustrate
the potential for both executive and administrative abuse.
In Rees v Crane,37 the respondent, the most senior puisne judge in the
country, had been simply left off the roster of sittings for the upcoming
term by the Chief Justice, following which the latter initiated the
removal process by asking the Judicial and Legal Services Commission
(JLSC) to consider whether they would recommend to the President
to set up a tribunal to investigate the question of the respondent’s
removal. The JLSC did not give the respondent an opportunity to rebut
the complaints before making the recommendation to the President,
who duly established the tribunal and suspended the respondent. The
respondent sought judicial review of the decisions of the Chief Justice
and the JLSC, contending that they were ultra vires because he was not
given an opportunity to make representations before they were made.
The Privy Council agreed with the Court of Appeal that there had been
a breach of natural justice and prohibited the tribunal from proceeding
withtheinquiry.TheBoardheldthattherespondentoughttohavebeen
given the opportunity to reply to the charges before the representation
wasmadetothePresidenteventhoughthiswasonlytherststageofthe
removalprocess.Suchanopportunitywasrequired,theyfelt,becauseof
the enormity of the proceedings, the seriousness of the charges against
the respondent, including misbehaviour, the publicity surrounding both
hissuspension andtheappointmentofthetribunalofinquiry,and the
damage to his reputation and position as a judge. The Privy Council also
quashedthedecisionoftheChiefJusticenottoscheduletherespondent
on the roster for the following term, holding that this amounted to a de
facto suspension. Their Lordships held that if judicial independence were
tomeananything, thensuspensionand terminationofjudicial ofcers
had to follow the strict letter of the law.
Rees v Crane is a classic example of the vulnerability of judges to
administrative interference, despite all the protections itemized in the
37. Rees v Crane [1994] 2 AC 173 (PC T&T).
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Transitions in Caribbean Law
constitutions. As the head of the judiciary, Chief Justices are highly
inuential,inthattheyareinchargeoftheadministrationofthecourts,
they assign cases and they help to determine new appointees by virtue
of sitting on the judicial (and legal) services commission. Such power
helps to explain in turn why governments in the region have tried to
inuencetheappointmenttothisofce,forbycontrollingitsincumbent
governments can indirectly control the entire judiciary – not by insisting
that judges must rule a certain way, but through the assignment of duties
which may well determine the outcome of a case. Moreover, a chief justice
aligned to the executive is a critical ally on the service commission, this
being the body that chooses new appointees to the bench.
An example of executive machinations occurred more recently in
Trinidad and Tobago in relation to the conduct of criminal proceedings
brought against the Chief Justice, with the entire episode providing
a perfect illustration of the lengths to which some governments are
prepared to go in order to control the judiciary.
In Sharma v Browne-Antoine,38 the Chief Magistrate alleged that
theChiefJustice had triedtoinuence a caseinvolvingformer Prime
Minister Basdeo Panday. Facing imminent prosecution on a charge
of attempting to pervert the course of public justice, the Chief Justice
obtained leave to seek judicial review of an alleged decision to prosecute
him by the Deputy Director of Public Prosecutions. Later, the trial judge
made similar orders against the Assistant Commissioner of Police,
restraining all of the respondents from taking steps to prosecute the
Chief Justice. The trial judge refused an application by the respondents
to set aside the leave, whereupon they appealed successfully to the Court
of Appeal. Although the Privy Council dismissed an appeal by the Chief
Justice on the ground that the trial judge had misdirected herself on the
appropriate standard to be applied, in the account of the events detailed
by their Lordships one can discern the inuences that were at work
behind the scenes.
Aconsiderableperiodoftimehadelapsedbetweentherstvoicingof
any complaint by the Chief Magistrate and the making of his statement,
which in the context of criminal proceedings is a factor that impacts
signicantly on credibility. There was some suggestion that the Chief
Magistrate had been implicated in a property transaction, from which he
was extricated by the Attorney General, another factor which the Chief
Justice held out as compromising the integrity of the Chief Magistrate
and giving him a motive to lie. However, even though the state had
38. Sharma v Brown-Antoine [2006] UKPC 57 (T&T).
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213
Judicial Independence as an Indispensable Feature of the Rule of Law
gathered considerable evidence relating to this transaction (some 20
statements or thereabouts), none was disclosed at any stage. Instead,
information about the case was leaked by the government to the press,
no doubt to prejudice the Chief Justice in advance of the proceedings.
Uncontradicted evidence was led that prior to the laying of any charges
both the Attorney General and the Prime Minister had urged the Chief
Justice to resign on at least three separate occasions, a prejudgment of
the issue that the Prime Minister either in his naiveté or plain contempt
for the presumption of innocence (not to mention the separation of
powers) actually repeated in Parliament.39
By the time the police were ready to lay charges, they obtained an
arrest warrant which they attempted to execute at the home of the Chief
Justice on a Friday at 5:00 p.m. Apparently some eight police cars turned
up for the occasion, and though the Chief Justice was able to secure the
intervention of his legal adviser and was not in the end taken away in
handcuffs, this vulgar display of force – at the start of the weekend when
arrested persons in the normal course would have to be detained until
Monday morning – could only have been intended to intimidate the Chief
Justice and secure his resignation, earlier solicited by the Prime Minister
and his chief legal adviser in private meetings.
Irrespective of the merits of the allegations – the credibility of which
is questionable given that the local committee dismissed the case
to remove the Chief Justice and the matter never reached the Privy
Council – what is particularly disturbing about this attempted removal
wereallthe irregularitiesinthe processes,bothofcial andunofcial.
Whileitmay bedifcult tocometo anyconclusionsabout motivations
merely from the reported facts of a case, these events, particularly in the
context of heterogeneous and politically polarized societies like Guyana
andTrinidad andTobago, highlightonceagaintheinadequaciesofthe
explicit constitutional provisions by themselves, however detailed they
may be. In the absence of a mature political climate, resort to implicit
constitutionalnorms(whichreectunderlyingvalues)couldwellprovide
a way for keeping governments in check and preventing the manipulation
or other abuse of the actual text by an overreaching executive.
4. The Jurisdiction of Superior Courts
Finally, a critical element in ensuring the independence of the
judiciary is the actual preservation of its jurisdiction. Obviously, if that
39. This was reported widely in the media, both locally and internationally. See ‘Chief Justice Removal
Being Discussed,’ BBC News (Caribbean), 12 May 2006 <http://www.bbc.co.uk/caribbean/news/
story/2006/05/060512_ttjudgeweekend.shtml> accessed 27 Jul 2010.
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jurisdiction could be reduced or taken away altogether, to be entrusted
to a less secure body, then this would be a covert means of undermining
the judiciary. The case that best articulates this principle in the
Commonwealth Caribbean is Hinds, the Jamaica Gun Court case, where
the constitutionality of a new court established by Parliament to try
rearmoffences wasunderreview.40 The Privy Council held that while
the Jamaican legislature was perfectly entitled to create new courts or
entrust existing courts with new names, what it could not do was vest in
a new court composed of members of the lower judiciary, a jurisdiction
that had previously formed part of the jurisdiction of the Supreme Court.
Delivering the judgment of the majority, Lord Diplock explicated
in specic terms what the jurisdiction of the Supreme Court entailed,
both from an examination of specic constitutional provisions as well
as by extrapolation from the inherent nature of the institution itself.
With regard to the former, the Jamaican constitutional provisions
specied original and appellate jurisdiction in all litigation under the
bill of rights as well as any disputes regarding the membership of the
Houses of Parliament.41 Aside from what was explicitly stated, Lord
Diplock identied three types of jurisdiction which, in his view, were
characteristic of a higher judiciary: unlimited original jurisdiction in
all substantial civil cases; unlimited original jurisdiction in all serious
criminal offences; and supervisory jurisdiction over the proceedings of
inferior courts.42 Taking away any of this power and conferring it on
a differently constituted body, as attempted by the legislation under
review, was a surreptitious means of subverting the constitution. Lord
Diplock pointed out that if Parliament could simply strip the Supreme
Court of all jurisdiction except that which was explicitly conferred on
it in relation to the Bill of Rights and membership of Parliament, then
what would be left would be such a restricted or limited jurisdiction that
the label ‘Supreme Court’ would be misleading. According to him, what
was most objectionable about this was that
…the individual citizen could be deprived of the safeguard, which
the makers of the Constitution regarded as necessary, of having
importantquestionsaffecting hiscivilor criminal responsibilities
determined by a court, however named, composed of judges whose
independence from all local pressure by Parliament or by the
40. Hinds v R [1977] AC 195 (PC Ja).
41. There are regional variations. In Guyana, for example, in addition to these matters the High Court
also has exclusive jurisdiction to determine disputes over the conduct of elections: see Guyana
Constitution 1980 art 163.
42. Hinds (n 40) 221.
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215
Judicial Independence as an Indispensable Feature of the Rule of Law
executive was guaranteed by a security of tenure more absolute
than that provided by the Constitution for judges of inferior courts.43
A. Removing the Jurisdiction of the Privy Council in Guyana
In Guyana, the assault on judicial independence has centred not
only on the manner of appointment of judges, but has also involved this
crucialelementofjurisdiction.Post-independence,therstandarguably
most effective step towards emasculating the judiciary was the removal
of the Judicial Committee of the Privy Council as the country’s nal
CourtofAppeal.ThiswasdoneinstagesbytheBurnhamregime,rst
by abolishing the right of appeal in all criminal and civil matters not
involvingconstitutionalquestionswhenthecountryattainedRepublican
status in 1970,44 as well as removing at the same time the right of
appeal by special leave of the Judicial Committee.45 This left appeals
to the Privy Council only in constitutional cases, which was eventually
removedthreeyearslatermakingtheGuyanaCourtofAppealthenal
court on all issues.46 Once the neutral judges of the Privy Council were
out of the picture, a local judiciary stacked with appointees of the ruling
party provided no protection for the citizenry against an increasingly
dictatorial and illiberal regime, and the reports are replete with cases
that illustrate the consequences. Rights to freedom of expression and
assembly and association were particularly endangered, no doubt on
account of the threat they pose to a dictatorship. Thus, for example, the
abilitytocriticizethegovernmentwasstiedbyaplethoraofdefamation
suits brought by the President and senior ministers against newspaper
editors and leading opposition politicians,47 the existence of a free
press was thwarted in other ways such as by the denial of newsprint
and machinery,48 and assembly and association rights were narrowly
interpreted, notwithstanding grandiose declarations in the constitution
regarding the political, economic and social system of the state.49
A compromised judge is most valuable in civil matters, but in serious
criminaloffenceswhicharetriableonindictmentitisdifculttocontrol
43. Ibid.
44. Guyana Republic Act 1970-9 s 8.
45. Judicial Committee (Termination of Appeals) Act 1970-14.
46. Constitution (Amendment) Act 1973-19 s 4.
47. Jagan v Burnham (1973) 20 WIR 96 (CA Guy). Many of the cases of this period are unreported,
but have been comprehensively documented by contemporary journalists and academics. See, for
example, Morrison (n 9), especially at 196–244, and R. James and H. Lutchman, Law and the
Political Environment in Guyana (IDS, Turkeyen 1984) 143–65.
48. Hope v New Guyana Co Ltd [1979] 26 WIR 233 (CA Guy).
49. AG v Alli (1987) 41 WIR 176 (CA Guy).
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Transitions in Caribbean Law
the outcome when decisions of fact are made by a jury of 12 persons.
In order to neutralize this safeguard, the government passed the
Administration of Justice Act (AJA) in 1978, under which all indictable
offences – except a very small number – were converted into hybrid
offences. This meant that they could also be tried summarily, that is,
before a single magistrate, which naturally made the outcome far more
assured. Moreover, under the AJA, the election of how an indictable
offence would be tried was taken away from the accused person and left
in the discretion of the magistrate trying the case. The result of these
changes was that the safeguard of jury trials was removed in all but
a handful of extreme cases, clearing the way for politically motivated
prosecutions against opponents of the government. Such trials were not
left up to chance or fairness, which would be the case where they were
determined by jury, but were entrusted to magistrates who could be
relied on to imprison or at the very least terrorize political opponents.50
According to Percy Hintzen and Ralph Premdas, commenting on these
developments, ‘…the judicial system became integrated into the regime’s
coercive arsenal to be used against political dissidents arrested and
charged with trumped-up offences by the loyal security forces.’51
Finally, in 1980, by which time oligarchic control had peaked, the
independence constitution was repealed and replaced by another that
createdtheofceofExecutivePresidentwhileclothingitsoccupantwith
virtually imperial powers. Included among the package of new measures
was one providing that ‘Parliament may confer on any court any part
of the jurisdiction of and any powers conferred on the High Court by
this Constitution or any other law.’52 This provision had not appeared
in either of the two previous constitutions and seemed to be included
specicallyforthepurposeofcircumventingthe rulingin Hinds, for it
explicitly allowed Parliament to transfer the powers of the High Court to
any other court, however constituted. Thus, the entrenched jurisdiction
celebrated and upheld in Hinds, which precluded the government from
transferring the jurisdiction of the Supreme Court to one with less
protection by ordinary legislation, was removed in one fell swoop. This
provision,uniqueintheCommonwealthCaribbean,hasbeendescribed
50. P. Hintzen and R. Premdas, ‘Guyana: Coercion and Control in Political Change’ (1982) 24 J I-A
Stud & World Affairs 337, 348–50. A notable example of the extent to which the menacing executive
inuencedlitigationundertheBillsisprovidedbytheperverseoutcomeinAmeerally v AG (1978)
25 WIR 272 (CA Guy), where despite judicial acknowledgement that the particulars of the charge
brought against the appellants disclosed no offence, the Court held itself powerless to intervene
– even with a constitutional right providing ‘protection of the law’ (specifying therein various
procedural protections for the criminally accused) – no doubt because the respondent was the state.
51. Hintzen and Premdas 349.
52. Guyana Constitution art 123(3).
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217
Judicial Independence as an Indispensable Feature of the Rule of Law
by Dr Francis Alexis as a form of ‘disentrenchment.’53 It opened up a
terrible vista for the survival of the higher judiciary as an institution,
though ultimately, it never had to be invoked for so effective was the
earlier AJA in achieving the same end of political control.
B. Abolition of the Privy Council Appellate Jurisdiction and
Substitution with the Caribbean Court of Justice
More recently, the debates and litigation spawned in several territories
over regional moves to establish an indigenous court of last resort
bring into sharp focus the sensitive nature of judicial independence. In
Jamaica, litigation was commenced by several public interest groups
challenging the constitutionality of the legislation by which the Jamaican
government sought to give domestic effect to the Caribbean Court of
Justice (CCJ) Treaty. In Independent Jamaican Council for Human
Rights v Marshall-Burnett,54 the appellants accepted that the right of
appeal to the Privy Council could have been abolished by legislation
passed by a simple majority of each House of Parliament – an inevitable
concession since section 110 of the Jamaican Constitution, in which this
right of appeal was set out, was not specially entrenched. However, the
appellants objected to the substitution of the CCJ for the Privy Council
asthenalcourtofappealonthegroundthattheCCJdidnotenjoythe
same level of entrenched protections in the Constitution afforded to the
Supreme Court and Court of Appeal of Jamaica. Therefore, according to
their argument, any change to this structure could only be effected by
constitutional amendment, and the failure to enact the relevant laws by
the applicable majorities rendered the legislation ineffectual.
The Privy Council accepted these arguments and held that the Acts
by which these changes had been purportedly made undermined the
protection afforded Jamaicans by the entrenched provisions of Chapter
VIIoftheConstitution. Since theproceduresrequired for amendment
of an entrenched provision were not followed, and since the two aspects
of the legislation – abolition of the Privy Council and substitution of the
CCJ – were inextricably bound up, there could be no severance and the
legislation was declared wholly void.
The safeguards that currently exist in relation to the higher judiciary
in Jamaica were identied as being their manner of appointment,
security of tenure and conditions of service, all of which were designed
to ensure their insulation from executive pressure or interference.
53. F. Alexis, Changing Caribbean Constitutions (Antilles Publications, Bridgetown 1983) 127–32.
54. [2005] UKPC 3 (Ja) (IJCHR).
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218
Transitions in Caribbean Law
Signicantly,theAgreement Establishing the Caribbean Court of Justice
provides similar safeguards for judicial independence, covering all the
very same issues as appointment, service, remuneration, and so on as
exist in relation to the higher judiciary of Jamaica. However, these were
dismissedbytheirLordshipsasinadequate,onthegroundthatthetreaty
couldbeamended byagreement oftheparties followedbyratication,
both executive acts which would thereafter take effect in Jamaican law
bysimple afrmativeresolution. Notably,the PrivyCouncilobtainsno
level of entrenchment in the Jamaican Constitution, nor are there any
procedures by which the independence of that body can be guaranteed.
But like Caesar’s wife, their Lordships are apparently above reproach,
unlike the judges of the CCJ and in spite of the fact that the latter are
likely to be chosen from among only the best of Caribbean jurists.
The Privy Council’s conclusion that the CCJ judges lack adequate
independence was surely speculative. Furthermore, it is fanciful to
suppose that the CCJ Agreement, which provides elaborate safeguards
for judicial independence, can be easily changed so as to weaken or
undermine the court’s independence. To amend this Agreement in order
toachievesuchnefariousendswouldrequireaconspiracytosubvertthe
rule of law of widespread and far-reaching proportions, an unthinkable
prospectgiventhatitwouldalsorequiretheconsentofmemberstates.
That judicial independence is properly safeguarded under the Agreement
therefore hardly seems to be in doubt.
At any rate, comparisons to their Lordships’ Board and discussion of
the potential dangers of amending the Agreement were unnecessary for
this decision given the central problem identied with the legislation,
which was its failure to entrench the right of appeal to the CCJ in the
constitution. What their Lordships meant by this was that once the CCJ
was established, there would be nothing to preclude any subsequent
governmentfromremovingitasthenalcourtofappealandsubstituting
its own court, so that in Lord Bingham’s view, the ‘three Acts give rise to
a risk which did not exist in the same way before.’55
This possibility was not entirely speculative, given the precedent
already set in the Caribbean by the United National Congress (UNC)
while in power in Trinidad and Tobago assenting to the CCJ Agreement
and then having second thoughts while in opposition.56 But it does
seem highly exaggerated. Any future attempt to replace the CCJ by a
constitutionally less secure court could be invalidated by the reasoning
in Hinds, at least where the holders of any new court are not appointed
55. Ibid 21.
56. Sharma v AG [2005] 1 LRC 148 (CA T&T).
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219
Judicial Independence as an Indispensable Feature of the Rule of Law
on the same terms and in the same manner prescribed for persons
exercising such jurisdiction. In other words, the jurisdiction conferred
on any future court or tribunal could be scrutinized on the authority of
Hinds to ensure, ultimately, its ‘independence from political pressure
by Parliament or by the executive.’57 Exaggerated or not, however, as
illustrated by the Guyanese experience tampering with the judiciary is
therststepbywhichtheexecutiveisallowedtooperateunrestrained
and in violation of the rights of citizens. For all of its undiplomatic
posturing and potential overreaching therefore, the decision of the Privy
Council in this case underlines the premium placed on the independence
of the judiciary. As pointed out by Lord Bingham, such independence
is indispensable for the reason that ‘…the protection of judges from
executive pressure or interference…is all but universally recognized as a
necessary feature of the rule of law.’58
5. Implicit Constitutional Norms
The instances of subversion of the judiciary and general manipulation
oftheconstitutiondescribedaboveare,ultimately,reectionsofpolitical
immaturity – not unexpected given the nascent stage of development
of our societies. These aberrations are by no means conned to the
heterogeneous communities of Belize, Trinidad and Tobago, and Guyana.
Indeed, in order to appreciate the critical role played by the judiciary in
securinggoodgovernanceacrosstheregion,oneneedonlyreectonhow
enforcement of the Public Order Acts has impacted on expression and
assembly rights (and by extension, democracy) in the OECS, particularly
Antigua and Barbuda, and St Kitts and Nevis;59 or the implications
of expansive interpretations of the meaning of ‘public interest’ in
emergency legislation in the OECS;60 or the misuse of defamation laws
bygovernmentofcialstosilencecriticsandstiedissent.61
57. Hinds (n 40) 219, 222.
58. IJCHR (n 54) 12.
59. AG v Antigua Times (1975) 21 WIR 560 (PC A&B); Francis v Chief of Police (1973) 20 WIR 550 (PC
St K-N); AG v Hector (1987) 40 WIR 135 (ECCA A&B); St Luce v AG (1975) 22 WIR 536 (CA WIAS
A&B) – all of these being cases with overtly political implications.
60. Maximea v AG (1974) 21 WIR 548 (CA WIAS Dom).
61. Simmonds v France (7 May 1985) KN 1983 HC 1 (St K-N); Barrow v Caribbean Publishing Co Ltd
and Cozier (1971) 17 WIR 182 (HC Bar); Adams v Smith (17 Feb 1982) BB 1982 HC 8 (Bdos) (also
quotedin DeMerieux(n 9)218). Theauthoris alsotempted toincludePanday v Gordon [2005]
UKPC 36, (2005) 67 WIR 290 (T&T) in this list, for even though the plaintiff was not a government
functionary, the defendant was the Leader of the Opposition in Trinidad and Tobago, while the
plaintiff was, ironically, the CEO of a large media house which controlled several newspapers as
well as a television station. It seems that the defendant was to be silenced at all costs, and so
held the Court of Appeal of Trinidad and Tobago by a majority, the lone dissenter being the later
embattled Chief Justice Sharma.
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220
Transitions in Caribbean Law
While these are all cases with overtly political implications, there
are other issues at stake. In the Commonwealth Caribbean, there has
been a tendency to approach the Bills of Rights narrowly, and the effect
has been to thwart the tremendous promise of the elaborate guarantees
that were enshrined at independence.62 It is perhaps no exaggeration
to posit generally that where the state is involved, the courts have
displayed excessive deference through notions of the presumption of
constitutionality of legislation,63 generous interpretations of the ‘public
interest’64 and even by reading limitations into the Bills where none are
stated.65 While there have always been signs that that there is scope
for innovative thinking free of common law restraints,66 rights-based
adjudication in the Commonwealth Caribbean has not been uniformly
approached in an expansive or even purposive manner. It has had, at
best, a very uneven trajectory. There are a number of reasons for this
within the Bills themselves, in the form of opaque redress provisions,
apparently unenforceable opening sections, generous savings of existing
law and copious limitations on the actual rights. To be fair, judges have
hadadifculttask–grapplingwiththisparadigmaticallydifferentway
of approaching constitutional issues while at the same time having to
balance age-old conicts between community and individual in brand
new states. But having acknowledged these realities of text and context,
it would be futile to deny the blatant bias often on display, and one must
wonder whether a more secure judiciary would operate with less deference
to the state where it is a litigant in proceedings. In other words, the
existence of an independent judiciary seems critical in order that the full
vision of the constitutional guarantees may be realized, particularly in
relation to the preservation of core values of human dignity, liberty and
equality.Butitiswhentheseconsiderationsareborneinmindthatthe
limitations of the constitution become apparent, for not only has the text
beeninsufcienttoachieveits objectivesindependentlyofcommonlaw
constraints, it has also not been able to secure an independent judiciary,
which perhaps contributes to the problem.
Given this background, a recent decision of the Privy Council in
an appeal from Mauritius holds signicant promise. In the State v
62. See DeMerieux, ‘The Common Law and the Litigation of Fundamental Rights and Freedoms before
the Privy Council’ (this volume).
63. Mootoo v AG (1979) 30 WIR 411 (PC T&T); Suratt v AG [2007] UKPC 55 [45] (T&T), (2007) 71 WIR
391, 409; Chief of Police v Nias (2008) 73 WIR 201 (CAECS St K-N).
64. Sookermany v DPP (1996) 48 WIR 346 (CA T&T); DPP v Tokai (1994) 48 WIR 376 (HC T&T).
65. DPP v Nasralla [1967] 2 AC 238, (1967) 10 WIR 299 (PC Ja); AG v Caterpillar Americas Co (2000)
62 WIR 135 (CA Guy); Campbell-Rodriques v AG [2007] UKPC 65 (Ja).
66. Min Home Affairs v Fisher [1980] AC 319, (1979) 44 WIR 107 (PC Ber); Pratt and Morgan v AG
[1993] 4 All ER 769, [1993] 43 WIR 340 (PC Ja); Gairy v AG No 2 [2001] UKPC 30 (Gren).
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221
Judicial Independence as an Indispensable Feature of the Rule of Law
Khoyratty,67 the respondent was charged with a non-bailable drug
offence, whereupon he challenged an earlier constitutional amendment
facilitating the refusal of bail as violating the principle of separation of
powers and, by extension, s 1 of the Constitution which had declared
Mauritius to be a democratic state. His argument, successful both in the
Court of Appeal and the Privy Council, was that bail being intrinsically in
the domain of the judiciary, the constitutional amendment in 1994 which
denied its availability across the board for certain types of offences was a
usurpation of judicial power by the legislature. The Privy Council agreed
with the Court of Appeal of Mauritius that since the separation of powers
is a vital feature of a democratic state, which Mauritius was declared
to be in s 1, any law encroaching on this principle violated that section,
which meant that to be effective it had to be passed in accordance with the
highermajoritiesrequiredforamendment.Sincethe1994amendment
hadbeenapproved byamere three-quarter majorityinParliament, it
was accordingly void and of no effect.
LordSteyn,deliveringtheprincipaljudgmentoftheBoard,identied
‘democracy’ as importing three distinct elements:
Therstis thatthe peoplemust decidewhoshould governthem. 
Secondly, there is the principle that fundamental rights should be
protected by an impartial and independent judiciary. Thirdly, in
order to achieve a reconciliation between the inevitable tensions
between these ideas, a separation of powers between the legislature,
the executive, and the judiciary is necessary.68
Lord Steyn noted that section 1 was not in the nature of a preamble,
but was ‘operative and binding’;69 further, its importance was underlined
by two facts – its pride of place in the constitution and its exceptional
degree of entrenchment.70 In a separate concurring judgment, Lord
Rodger of Earlsferry added that ‘…it would be wrong to say that the
concept of the democratic state to be found [in s 1] means nothing more
than the sum of the provisions in the rest of the Constitution, whatever
they may be at any given moment. Rather, section 1 contains a separate,
substantial, guarantee.’71 As to what that separate guarantee entailed,
Lord Rodger identied it in particular to be ‘a separation of powers
between the legislature and the executive, on the one hand, and the
judiciary, on the other.’72
67. [2006] UKPC 13 (Maur).
68. Ibid 12.
69. Ibid 15.
70. Ibid 17.
71. Ibid 29.
72. Ibid.
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222
Transitions in Caribbean Law
In nding that a provision outside of the Bill of Rights captures
substantive elements such as the protection of fundamental rights
by an independent and impartial judiciary, separation of powers
and even the rule of law itself, their Lordships have opened up new
avenues for exploration independent of the schizophrenic Bills. For the
Commonwealth Caribbean, where the term ‘democracy’ is also bandied
about,73 these developments surely hold tremendous implications for
constitutional interpretation, judicial independence, and, by extension,
governance in general. Their relevance is further accentuated by the
fact that democracy is increasingly lumped together with other concepts
like the rule of law, as done by Lord Bingham in 2005 where he stated
that ‘the function of independent judges charged to interpret and apply
the law is universally recognized as a cardinal feature of the modern
democratic state, a cornerstone of the rule of law itself.’74 Surely one of
theimmediatebenetsofKhoyratty (and there are others) is that their
Lordships’ a priori view of democracy leads us to ask a number of related
questions, in particular whether our constitutions have been effective
in securing key standards promoted therein such as the protection of
fundamental rights and judicial independence. Can the written text, and
especially references to democracy, support the meanings put on it, and
further, do other implicit norms arise from the text or the constitution’s
basic structure? These are exciting issues, with all the potential of
opening up a whole new frontier of constitutional interpretation in the
Commonwealth Caribbean. Still, a cautionary note is in order. While the
expansive reading of democracy is exciting for all of its possibilities, are
we to assume that its meaning was exhausted in the judgment, or is it
(or the constitution itself) capable of giving rise to other fundamental
norms? If so, by what process or methodology are further norms to
be ascertained? And does the fact that certain norms are dubbed
‘fundamental’ or ‘intrinsic’ mean that they are untouchable, beyond the
scope of any Parliamentary majority?
Thislastinquiryisperhapsthemosttroublesome.Partofthedifculty
in articulating a response lies in the prevarication displayed by the Privy
Council on this subject. Just two years before its decision in Khoyratty,
73. See the Constitutions of Antigua and Barbuda s 1, The Bahamas art 1, Belize s 1, Guyana art 1,
or the Preambles to the Constitution of Dominica and Trinidad and Tobago – all of which contain
a reference to democracy or belief in a democratic society. Despite this, in at least one territory,
the declaration of The Bahamas to be a ‘sovereign and democratic State’ was given a narrow
interpretation, not encompassing a fundamental right to vote in absolute secrecy and possibly not
even a right to vote at all: Ingraham v McEwan [2002] 65 WIR 1 (CA Bah).
74. A v Secretary of State for the Home Department, X v Secretary of State for the Home Department
[2004] UKHL 56, [42] (Eng).
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223
Judicial Independence as an Indispensable Feature of the Rule of Law
the Privy Council rejected an argument in an appeal from Trinidad and
Tobago that the mandatory death penalty was unconstitutional on the
basis of contravening the principle of separation of powers.75 According to
the majority in that case, ‘the principle of the separation of powers is not
an overriding supra-constitutional principle but a description of how the
powers under a real constitution are divided.’76 Given the aversion of their
Lordships to proffer detailed reasons for their rulings, their Damascene
conversion to the existence of a doctrine of separation of powers a mere
two years later in Khoyratty stands in stark, irreconcilable contrast.
At any rate, accepting that the later decision in Khoyratty is consistent
with previous authority and therefore more likely to be correct, still
unresolved is the status of this and any other principle found to exist
by implication. In India and Canada, where several identical principles
(including the rule of law and separation of powers) have been read
into their constitutions, the end result has been the elevation of those
principlesintoapre-eminentposition.Forthersttimeeverthisyear,a
Commonwealth Caribbean court has relied on the Indian ‘basic structure
doctrine’ (as well as the principle of separation of powers) to invalidate
a constitutional amendment by which the government sought to exclude
the protection of property from applying to sub-surface resources
wherever they might be found within the country. In Bowen v AG, Conteh
CJ held that the effect of a constitutional amendment should not be
destructive of the basic structure of the constitution itself.77 He rejected
the government’s position that all amendments are valid so long as they
conform to the provisions of s 69 – the amending section – which merely
setout,accordingtohim,mannerandformrequirementsforalteration.
In addition to s 69, amendments must conform to the normative
requirementsencompassedinart68, whichsubjectsParliament’slaw-
making power to the constitution. Applying these principles, Conteh
CJ found that fundamental rights and in particular the protection of
certain rights form part of the basic structure of the Belize constitution.
This meant that even though the amending legislation had passed with
the required majority it was nonetheless tainted, for by purporting to
‘disapply’ one such fundamental right it violated the basic structure of
the constitution.
Positivists will naturally recoil from this decision – here was an
amendment duly passed, but invalidated by reference to a natural law-
type argument in which the Belizean constitution was held to embody
75. Matthew v State [2004] UKPC 33 (T&T).
76. Ibid 28.
77. Bowen v AG (13 Feb 2009) BZ 2009 SC 2 (Bze).
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224
Transitions in Caribbean Law
an irreducible minimum content. Completely ignored by the trial judge
was the legitimacy of frustrating the democratic will of the majority, or
moreprofoundquestions as tothewhy the constitutionshouldoccupy
this privileged position in the rst place. Admittedly, Conteh CJ may
have gone too far, but delity to purely mechanistic approaches to
constitutional change (or, one could add, the rule of law and democracy)
would subject constitutions to all the caprice of our ‘fragile democracies.’78
Thus, Bowen is not some maverick decision to be dismissed out of hand,
but one in which the unmistakable parallels to Khoyratty’s interpretation
of democracy signals a new direction in human rights jurisprudence in
the context of the problematic Commonwealth Caribbean constitutions.
Bybearinginmindthequestionstheyraise,judgesandlawyersstanda
better chance of formulating a more meaningful indigenous jurisprudence
as they work out the nature and scope of implicit constitutional rights,
and how the latter may be legitimately utilized to secure – not only an
independent judiciary – but ultimately a more substantive notion of
democracy and the rule of law.
78. As Trinidad and Tobago was described by Jamadar J in Northern Construction v AG (31 July
2002) TT 2002 HC 104 (T&T). TRS Allan describes parliamentary majorities as a ‘concentration of
power,’ which in his view poses a serious risk to fundamental rights and liberties. This possibility
is what legitimates the existence of constitutional restraints against irresponsible legislative
encroachment on such rights, and mandates a substantive view of the Rule of Law concept:
‘Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism’ (1985) CLJ 111.
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