Creating the Legitimate Expectation
A. The CCJ's View
It is not surprising that the CCJ found that a legitimate expectation existed on the facts, as presented to them. The case for such a finding was a fortiori.
First, there was ratification by the Barbados Government of the American Convention on Human Rights. This was not, however, enough to found a legitimate expectation, in my view. More was needed. The CCJ cited the decision of the Australian High Court in Teoh, but it did not opine on the question of whether ratification alone could give rise to a legitimate expectation, and, given the nature of the reasoning of the CCJ, it did not rely on that case for its decision in relation to legitimate expectations. Second, there were positive statements from the executive that they would abide by the treaty in relation to such condemned prisoners.[616] Third, there was previous practice by the Barbados government to allow those prisoners to have their petitions heard and adjudicated upon before execution.[617] Fourth, Parliament, in amending the Constitution, impliedly recognized that it was the practice and indeed the obligation of the state to await the Commission’s process, at least for some period of time.[618] Therefore, the conclusion that �the respondents had a legitimate expectation that the state would not execute them without first allowing them a reasonable time within which to complete the [international human rights] proceedings they had initiated’ seems irresistible.[619]One of the major criticisms that can be made of this aspect of the decision was that the CCJ did not hear any arguments from either side on the use of legitimate expectations in this context. If that was done, the arguments for and against such an approach might have been canvassed before the court. Indeed, the conceptual difficulty noted below would have been fully argued to assist the CCJ making its decision.
However, we are left in the dark as to how to interpret and make sense of the decision. Importantly, the fundamental issues concerning the application of legitimate expectations, in particular, substantive legitimate expectations, in this context were simply not addressed. The CCJ merely relied on the reasoning in decisions relating to substantive legitimate expectations in England as the basis upon which to found the legitimate expectation in its decision. That, in my view is entirely sensible, but these decisions, for example exp Hamble Fisheries[620] and exp Coughlan,[621] can only go so far, because the central issue raised in Joseph was simply not addressed by the courts in those cases — indeed they could not have been, in light of the nature of the expectations created therein. Specifically, the CCJ itself noted that it was �not specifically directed to the evidence on which any such expectation might be grounded. Nor were we addressed on the principles that would govern it.’[622] This is quite a startling admission. There is no question, in light of the subject matter at issue, the fundamental questions raised, and the fact that a decision on this point was not necessary, that the CCJ ought to have exercised judicial restraint and should not have addressed this issue as comprehensively as it did in its judgment. But it did, and we are left to make sense of the decision and its far-reaching implications.B. Justifications
I have little difficulty with the conclusion of the CCJ in Joseph and Boyce for the following reasons: first, the class of individuals affected by that decision is a narrow one indeed — condemned prisoners — there was no intention on the part of the CCJ to extend that principle beyond the parameters of the decision. Second, that conclusion does not involve important policymaking decisions. In other words, it does not risk assuming the mantle of the executive or the legislator. Third, the conclusion of the CCJ was simply that the condemned prisoners had a legitimate expectation that the state would wait for reasonable period for completion of the international proceedings before it could lawfully execute them.
Fourth, the court did not conclude that the content of the international rights instruments could generally form part of domestic law - this was not as such the subject matter of the legitimate expectation, for if it were, and the court had held that the international treaty was incorporated into domestic law for all and sundry, via the legitimate expectation route, then, I would imagine, the decision would, of course, be quite problematic. In other words, the effect of the decision is simply that, in relation to the appellants, the content of the international treaty must have some force in domestic law via the legitimate expectation which had arisen. Since the decision of the CCJ rests solely on timing (i.e., the substantive expectation to the procedure under the relevant treaty), little can be extrapolated from the decision, even if the CCJ might have endorsed decisions such as Teoh where the legitimate expectation was only of a procedural benefit. In Joseph, the legitimate expectation was �procedural’ (in the sense outlined above) and, as such, can hardly be said to involve macro-political considerations, which the courts should properly avoid adjudicating on. Therefore, the decision is almost an inevitable one when the subject matter of the expectation and the consequences for the condemned prisoner is concerned. So far, the result seems unassailable, if it is accepted that it does not create any general binding principle of law, but is clearly a result driven solely by the facts presented.C. Conceptual Difficulties
Legitimate expectations can arise in a myriad of circumstances, in particular the three classes identified by the recent decision of the Court of Appeal in ex p Murphy,[623] namely, first, if the public authority has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). Second, if the public authority has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation).
Third, if, without any promise, the public authority has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation).The first point to note about legitimate expectations is that they give legal force to what are �non-rights’. So, a �change in policy’ or an �express promise to preserve an existing policy’ falls in that category. They are transformed into a legally enforceable right if they give rise to a legitimate expectation, which occurs broadly where the authority has �distinctly promised to consult’ or �distinctly promised to preserve existing policy’ in relation to those affected (or those potentially or substantially affected) or has �established a policy distinctly and substantially affecting a specific person or group.’ So, in Joseph, there was a clear promise to preserve an existing policy, and a potential change in policy by the executive, to a �specific group or person’ — the condemned men. The case for finding a legitimate expectation on the facts was a compelling one. It cannot be correct to suggest that a legitimate expectation cannot arise in relation to a process which originates from an international treaty. Before the court pronounces on the �change in policy’ or the �express promise made,’ the applicant has no legal right. The legitimate expectation is the route by which the �non-right’ is clothed with legality. When that is accomplished - by establishing that a legitimate expectation has arisen - then that �non-right’ becomes a �legal right’ which the court will give effect to. In this case, it is the legitimate expectation that gives the international process legal validity in domestic law in relation to the appellants - for if it were already �recognized by law’ or a �process recognized by law’ then surely there would be no need to have recourse to legitimate expectations!
It is a constitutional principle that unincorporated treaties have no binding force in domestic law unless they are incorporated into domestic law through legislation.
Constitutional principles do not exist in a vacuum, so any attempt at delineating the boundaries of a principle without regard to the basis for that principle is bound to be problematic. In ex parte Brind, it was noted that:it is a constitutional principle that a treaty obligation, undertaken by the Crown as a matter of prerogative power, can only be woven into the domestic law if Parliament so decrees. It follows that the court cannot itself purport to incorporate an obligation since it would be arrogating to itself the exercise of an authority only vested in the legislature.[624]
The limitation on the courts’ power is in relation to obligation, but legitimate expectations are clearly recognized principles of domestic public law. That their content in the exceptional case is derived in part from a treaty obligation is beside the point. As a result, the constitutional principle enunciated above cannot, and should not, be applied without exception, for it would be contrary to the rule of law that the executive can act arbitrarily or abuse its powers, while the courts remain powerless. The question of what process can be recognized as legal in any legal system is a question of national law. One cannot but agree that under our Constitutions law is defined as common law and statute. So, if the courts say that a particular international process has domestic effect (by whatever means), it makes that process part of the common law of that jurisdiction.
The courts are very cognizant of their role under the constitution and that only parliament has the power to legislate, but, when faced with deliberate and calculated actions by the executive to frustrate the legitimate expectations of a specific group of persons, should the courts be impotent to act to ensure that there is no abuse of power? Surely not! The concept of substantive legitimate expectations was born out of the struggle the courts had in deciding the circumstances in which a public authority should be bound by its promise made to, or previous practice in relation to, a specific group or persons.
The courts are now unanimous in their view that that would be where reneging on that promise or changing the policy by the public authority amounts to an abuse of power.[625] If the courts were able to overcome arguments that accepting substantive legitimate expectations amounted to usurping the executive function, why should it shirk when the argument is made that it would be assuming the legislative function? We all now know that executive power is subject to judicial review, not only administrative powers.[626] The separation of powers doctrine requires the courts to be restrained, but when confronted with such a blatant abuse of power by the executive, it should not allow the executive to simply hide behind the curtain of parliamentary sovereignty!Given the narrow nature of the doctrine, the same way that substantive legitimate expectations do not run the risk that the court is assuming the role of the decision maker, its application to international treaties (in the specific manner outlined above) would hardly generally result in the court assuming the role of the legislator. As a result of the decision of the CCJ in Joseph, the constitutional principle relating to the effect of international treaties and domestic law must yield to any legitimate expectation found to exist. Proving such an expectation is not as easy as it might appear.
To reiterate, the CCJ in Joseph noted the following factors which contributed to the establishment of the legitimate expectation: (a) ratification (which clearly was not of itself sufficient to found a legitimate expectation - properly understood); (b) positive statements by the state to abide by the Convention; (c) an established practice by the state of allowing condemned persons to allow their petitions to be processed before execution; and (d) Parliament in making that amendment impliedly recognized that it was the practice and indeed the obligation of the state to await the Commission’s process, at least for some period of time. In this respect, the question always is �to what has the public authority, whether by practice or by promise, committed itself?’[627] The government of Barbados specifically committed itself not to execute the condemned men before the final determination of their cases before international bodies. Therefore, the substantive legitimate expectation was to the procedure that ought to be followed in the case of the condemned persons viz. the state has to await the completion of the international processes before it could lawfully execute them. This meant that in relation to those condemned persons, the treaty must have legal effect in domestic law, for clearly the process that the state must await completion originates from the treaty obligation.
For the following reasons, the decision of the CCJ in Joseph will not result in the �wholesale enforcement of unincorporated treaties’: (a) the need to find, inter alia, a �distinct promise to consult’ or �distinct promise to preserve existing policy’ or �established policy’ in order to establish the legitimacy of the expectation; and (b) that expectation must be made specifically to those affected (or those potentially or substantially affected) or a distinct group of persons. These factors narrow the scope of the doctrine, as it necessarily should be - in this case, to the treaty obligations in relation to the condemned prisoners, and in circumstances in which the expectation arose were quite limited. The CCJ also referred to other reasons, including: (a) the desirability of giving the condemned person every opportunity to secure the commutation of his sentence; (b) the direct access which the treaty affords him to the international law process; (c) the disproportion between giving effect to the state’s interest in avoiding delay even for a limited period in the carrying out of a death sentence; and (d) the finality of an execution.
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