Conclusion
The CCJ’s decision in Joseph and Boyce attempted to emancipate Commonwealth Caribbean jurisprudence from the strained legal analysis of the Privy Council in Thomas and Lewis. The CCJ jettisoned the notion that the due process clause or the protection of the law clause applied to any legal process, including rights under international human rights treaties, thereby extending the criminal justice system of Commonwealth Caribbean states to the effect that a condemned prisoner would not be executed until the completion of all these processes.
The route by which the CCJ achieved this death-knell is troublesome, for it seemingly runs counter to the constitutional principle that international treaties do not form part of the domestic legal process until they have been incorporated by the legislature. This was the same objection that plagued the reasoning of the Privy Council in Thomas and Lewis — although not the only one. As argued above, the rule of law dictates that the courts, as guardians of the Constitution and the rights of citizens, should not be impotent to provide a remedy where there has been an abuse of power by the executive. Where the executive has distinctly promised to preserve existing policy (that condemned prisoners will not be executed before the final determination of the international process) for a specific person or group (condemned prisoners) who would be substantially affected by the change (suffer death), then ordinarily it must keep its promise. This is the substantive legitimate expectation - to frustrate that expectation where there is no significant public interest consideration militating against it is an abuse of power. The CCJ’s decision in Joseph clearly shows that the courts will not countenance such, and where appropriate will not hesitate to act.