Implicit Constitutional Norms
The instances of subversion of the judiciary and general manipulation of the constitution described above are, ultimately, reflections of political immaturity — not unexpected given the nascent stage of development of our societies.
These aberrations are by no means confined 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 reflect 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;[883] or the implications of expansive interpretations of the meaning of �public interest’ in emergency legislation in the OECS;[884] or the misuse of defamation laws by government officials to silence critics and stifle dissent.[885]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.[886] 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,[887] generous interpretations of the �public interest’[888] and even by reading limitations into the Bills where none are stated.[889] While there have always been signs that that there is scope for innovative thinking free of common law restraints,[890] 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 difficult task - grappling with this paradigmatically different way of approaching constitutional issues while at the same time having to balance age-old conflicts 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 insufficient 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 significant promise. In the State v Khoyratty,[891] 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, identified �democracy’ as importing three distinct elements:
The first 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.[892]
Lord Steyn noted that section 1 was not in the nature of a preamble, but was �operative and binding’;[893] further, its importance was underlined by two facts - its pride of place in the constitution and its exceptional degree of entrenchment.[894] 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.’[895] As to what that separate guarantee entailed, Lord Rodger identified 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.’[896]
In finding 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,[897] 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.’[898] Surely one of the immediate benefits 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 difficulty in articulating a response lies in the prevarication displayed by the Privy Council on this subject. Just two years before its decision in Khoyratty, 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.[899] 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.’[900] 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 first time ever this year, a Commonwealth Caribbean court has relied on the Indian â€?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.[901] 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 lawÂmaking 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 â€?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 lawÂtype argument in which the Belizean constitution was held to embody 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 first place. Admittedly, Conteh CJ may have gone too far, but fidelity 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.’[902] 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.