An Expansive Protection of the Law
It took some work for the CCJ to locate in the Barbados Constitution 1966 an expansive right to protection of the law on which the legitimate expectation of exhausting the international human rights process could hang.
Section 11(c) of the Barbados Independence Constitution 1966, the opening section to the bill of rights, provides that every person in Barbados is entitled to all the fundamental rights and freedoms including �the protection of the law.’[1056] The joint judgment described section 11 as being �in the nature of a preamble.’[1057] Familiarly, the judges turned to section 24, the redress clause in the bill of rights, to explain this conclusion. In its list of provisions that gave rise to redress, that section skipped the opening section and included only the sections that followed detailing the fundamental rights and freedoms.[1058] The judges also considered section 18, one of the detailed provisions, noted in the margins of the text as dealing with �the protection of the law.’ It mostly protects fair trial rights, especially for criminal defendants. Section 18 was specific and narrow and, on the face of it, could not accommodate the expansive understanding of protection of the law and procedural fairness, with the legitimate expectations derived therefrom, invoked by de la Bastide P and Saunders J.A. Distinguishing Rights: Exhaustive and Inexhaustive Rights
The judges plainly identified the dilemma. The question was whether the court’s constitutional power to enforce the right to protection of the law was limited to contraventions of section 18. They held that it was not so constrained, reasoning that section 18 was different from the other detailed provisions. While the Barbados Constitution dealt comprehensively with the other rights in the detailed provisions and there was no scope for enforcement outside that, they said that section 18 was not exhaustive because it focused only on the impact of the right on criminal and civil proceedings and it was not possible to encapsulate that right in a single provision.
Signalling their intention to elaborate a much broader constitutional right, they opined: �The protection which this right [protection of the law] was afforded by the Barbados Constitution would be a very poor thing indeed if it were limited to cases in which there had been a contravention of the provisions of s 18.’[1059]De la Bastide P and Saunders J’s distinction between exhaustive and inexhaustive rights is an appealing one but it faces a problem. It does not prove enough. There are a few detailed provisions in the conventional Caribbean bill of rights that cast rights in very broad and general terms, such as the right not to be held in slavery or servitude or not to be subjected to inhuman or degrading punishment.[1060] But for the most part, the detail in the provisions that follow the opening section to the bill of rights is detail limiting the scope of the right. Arguably, almost all the detailed rights are �inexhaustive’ since this means the detailed right is not comprehensive or is constrained.
Why couldn’t we extend the distinction to say that the freedom from discrimination in Barbados under the detailed provisions is inexhaustive because it does not include protection from sex discrimination?[1061] Or alternatively, that the right to privacy in the detailed section is inexhaustive because it only covers protection from arbitrary searches and seizures.[1062] Or even that property rights focused only on compulsory acquisition do not exhaust the larger concerns about deprivation and enjoyment of property.[1063] That some of the rights detailed are not comprehensive or do not represent the fullest articulation of the right is a given. The crux is a normative one: should we assume that the narrow articulation represents the full extent of constitutional recognition and justiciability? Without much more, the CCJ’s distinction between exhaustive and inexhaustive is purely descriptive and does not answer such questions.
B. Inherent Constitutional Jurisdiction: How the Trick Is Done
The conundrum remained, that the right to the protection of the law was very broadly and generously articulated in the opening section to the bill of rights, a section described by the judges themselves as a preamble, while the detailed section dealing with this right, which indisputably could give rise to constitutional redress, failed to include the compelling aspects of the right in issue before the court.
In 2005, in the Anguillan case AG v Lake,[1064] Saunders CJ (Ag) as he then was, struggled with this well-worn and vexed issue of the status of the opening section to the bill of rights and had concluded that �[o]ne searches the Constitution in vain however for any provision that tells a person in Anguilla whether, or how, that person can enforce the rights declared in section 1 [the opening section to the bill of rights].’[1065] The Court of Appeal was urged by counsel to give effect to the protection of enjoyment of property rights in section 1 of the Anguilla Constitution, the opening section to the bill of rights.[1066] The detailed right was much narrower, covering only the right not to have one’s property compulsorily acquired without compensation.[1067] Saunders CJ (Ag) insisted that there was no flexibility in the Anguilla Constitution and said that the conclusion that the opening section did not give rise to enforceable rights was �inescapable’ because the redress clause clearly excluded the opening section.’[1068] He continued,
The rights declared in section 1 are incapable of being enforced save in so far as they are contained in some section lying between sections 2 and 15 (inclusive) and then, only to the extent that the relevant section permits. In effect, what can be enforced is not section 1 but rather the particular section that contains the right in question. Section 1 is a mere statement of the broad principles upon which the fundamental rights and freedoms adumbrated in sections 2 to 15 are crafted.
Any purported breach of section 1 is not justiciable.[1069]Eighteen months later in Joseph, Saunders J, now in the CCJ found a way to enforce the right to the protection of the law broadly declared in the opening section of the Barbados Constitution, adding a new plank to the debates about the opening section. The answer did not lie in a specific provision in the Constitution. Instead, �the trick [was] done’[1070] by pointing to inherent constitutional relief. In a provocative and frustratingly cryptic response, de la Bastide P and Saunders J concluded that �pursuant to s 11, a condemned man has a constitutional right to procedural fairness as part of his right to protection of the law. Correspondingly, the courts have an inherent jurisdiction, and duty, to grant an appropriate remedy for any breach of that right.’[1071] The CCJ judges seemed to be suggesting that protection of the law was intrinsic to, or an essential constituent of, the Constitution. It did not matter if the Constitution explicitly provided a remedy, it already inhered in the Constitution. In effect, the judges looked beyond the text of the constitutions to unwritten constitutional values. The joint decision also accepted the earlier Privy Council rulings in Thomas v Baptiste[1072] and Lewis[1073] that protection of the law was the same as due process of the law which connoted procedural fairness, and that due process invoked the concept of the rule of law. Protection of the law is therefore substantially or an important element of respect for the rule of law.
Following their statement about �inherentj urisdiction,' the big question is the nature of the relationship between the right to the protection of the law and section 11. One way of reading the joint decision is that it implies that protection of the law is what Mark Walters calls a �text-emergent unwritten constitutional norm,’ that is, a norm that emerges from the constitution itself.[1074] The expansive right to the protection of the law, and we can now add the rule of law, on this interpretation is not dependent on section 11 or 18 or even the bill of rights more generally.
Sections 11 and 18 declare the right but they do not create it or, to use the judges’ language, exhaust it. Crucially, there is now an explanation for why the sections do not exhaust the right: protection of the law, or the rule of law, is a foundational constitutional value, an implied and enforceable constitutional norm that pervades the entire constitution and which also has a textual basis. Wit J addressed this more straightforwardly. Protection of the law or the rule of law, he said, demanded the availability of effective remedies. This guarantee inhered in the constitutions, and the redress clause reflected this aspect of the rule of law but was not its sum total.In the end, the CCJ judges resisted the conventional approach that assumes the text of our constitutions, and the concept of supremacy, can answer all important questions that arise. Regrettably, the joint decision made no attempt to associate their nascent method with or distinguish it from the earlier cases relying on the rule of law or the landmark Hinds decision which treated certain constitutional norms like separation of powers as implied from the texts and structure of Caribbean constitutions, and justiciable. Hinds, its weightiness and the hesitations about its scope and meaning would have provided a template and invaluable guidance for clarifying the basis of and charting the extent and boundaries of implied justiciable constitutional norms.
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