Implied Justiciable Constitutional Principles
More than anything, the distinctive approach in Joseph - the inherent constitutional jurisdiction - strongly echoes the foundational implication of the doctrine of the separation of powers in Caribbean constitutions by Lord Diplock in Hinds v R[1075] 30 years before in 1976.
Although Hinds is usually identified as the first time Caribbean courts plainly articulated an implied justiciable constitutional norm, the power of judicial review of legislation outside bill of rights matters is an even earlier and as monumental implication in the older Caribbean constitutions.A. The Unwritten-Written Jurisdiction:
The Implication of Judicial Review
The power of judicial review of legislation and administrative action that violate the provisions of the constitutions is the Caribbean’s first (postcolonial) unwritten constitutional fundamental. It is now so taken for granted that we forget that in the older constitutions it is still an implied jurisdiction in non-bill of rights matters. The older independent Caribbean countries - Jamaica, Trinidad and Tobago, Guyana, Barbados and The Bahamas — explicitly provided for judicial review in respect of breaches of fundamental rights in their constitutions. They said nothing about access to the superior courts to challenge compliance with non-bill of rights provisions in the constitutions.
The legacy of United States Supreme Court decision in Marbury v Madison[1076] made the implication of the power of judicial review in twentieth century written constitutions a given. Still, we should not overlook the labour of early Caribbean jurists in elucidating judicial review as an unwritten constitutional fundamental and an �inherent constitutional jurisdiction.’[1077] This expansive judicial review in respect of non-bill of rights matters was implied primarily from the supreme law clause, the writtenness of the constitutions, the textual restrictions on the authority of Parliament and the doctrines of separation of powers and the rule of law.
Although implied, many today treat this power of judicial review as one virtually written into the texts of all Caribbean constitutions, blurring the distinction between written and unwritten norms.B. �Westminster Model': A Gap-Filling Concept
In Hinds v R, Lord Dip lock used the label �Westminster model constitutions’ borrowed from SA de Smith as a device for implying constitutional principles.[1078] Westminster modelled constitutions had a certain structure, dealing in separate chapters with each organ of government and providing for the independence of superior court judges, he said. As important, these constitutions were said to be �negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the United Kingdom.’[1079] The new constitutions drafted �were evolutionary not revolutionary [providing]... for continuity of government through successor institutions..’[1080]
Thus �Westminster modelled’ signified that the constitutions could be �filled-in’ from sources exterior to the written text consistent with two related but distinct notions of continuity. First, a temporal continuity; that the constitutions provided for continuity with colonial institutions and through existing laws. If a Westminster modelled constitution established a Supreme Court but said nothing about the powers and jurisdiction of the court, for instance, one could look back, as Lord Diplock did in Hinds, at what the colonial Supreme Court did to determine that the new court had similar original jurisdiction in serious crimes and substantial civil matters and supervisory jurisdiction over inferior tribunals. The second notion of continuity was an imperial one; it meant the continuity of British constitutional practices.
Gaps in the constitutions could be filled by referring to colonial law and imperial habits.Professor Ralph Carnegie famously said, �When we [in the Caribbean] speak of our Westminster model Constitutions, we are not being lawyers or even political scientists. We are at best being poets.’[1081] Amongst other things, he was pointing out that the notion that Westminster incorporated a strong separation of powers, imitated by Caribbean constitutions, could not be grounded in law or political science. �Westminster modelled’ was in good part a romantic idea that expressed a desire and feeling of common law kinship between the UK and the Caribbean. Chandresh Sharma,[1082] decided in 2007, illustrates the whimsical constitutional theorizing that easily can be aligned to the ideology of �Westminster modelled.’ In that case, the Privy Council concluded that there was an implied constitutional right belonging to parliamentarians to be paid. It was based on the colonial practice and convention at Westminster of paying parliamentarians and the �inferred intention of the framers’ of the Constitution to have the parliamentary system operate in a way that is fair and even-handed as between competing partisan interests. The Privy Council was filling a gap in the text produced by an �extraordinary and obviously unintended contingency’ that elected parliamentarians were denied their salaries because there was no Speaker to administer the oath due to the even split of seats between the two major parties.[1083]
In this and a few other cases, the Privy Council appears to be trying to hold the balance between Trinidad and Tobago’s then ruling party and its main rival in that country’s divisive and racially charged political context in the period after the dramatic 2001 elections.[1084] They have made the operation of the parliamentary system in an even-handed way a fundamental justiciable unwritten constitutional norm in Trinidad and Tobago.
This demands far more careful and explicit justification. Unlike separation of powers and judicial independence, this inference had no meaningful textual grounding. Laying this goal at the feet of the �framers’ and what they would have intended is not credible, nor is resorting to past political practices because that tells us little about whether courts should be arbiters when disputes arise. The conception of Caribbean constitutions as �Westminster modelled’ elides the questionable legitimacy of these moves by promoting the idea that the framers can be properly associated with the project of constitutional continuity and maintaining traditions. In the Caribbean, public law must be an unending project of figuring out what democracy means. We do need precepts that guide the courts in navigating our fiercely partisan political environment which increasingly is not the performance of democracy but its abasement. However, the inferred intention of the framers as a justification for those rules will not do.C. Defining the Implied Rule: The Separation of Powers
Hinds ruled that separation of powers was fundamental to the constitution, part of the supreme law and justiciable. It had a direct force of its own, and could function as if it were an explicit provision of the Jamaica Constitution. This weighty assumption about the place of separation of powers in the constitutional order begged the question, what does �separation of powers’ mean? Lord Diplock’s sweeping suggestion that Caribbean constitutions provided for the exclusive control by each organ of government of its functions is an overstatement. As Professor Fiadjoe noted, there are no �watertight’ compartments in government.[1085] While it was accepted that Hinds ignored the overlap of functions and personnel between the legislature and executive, there was broad agreement on the principles it articulated about judicial power: that separation of powers meant that judicial power could not be vested in non-judicial bodies and that the jurisdiction of superior courts is specially protected.[1086] In DPP v Mollison,[1087] Lord Bingham observed that: �Whatever overlap there may be under Constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total, or effectively so.’[1088]
The majority decision of the Privy Council in Suratt, a 2007 appeal from Trinidad and Tobago, does violence even to this �sacred cow.’[1089] An Equal Opportunities Tribunal, headed by a Chair who did not enjoy the constitutional protections for his or her independence afforded to a superior court judge, was given jurisdiction to decide on discrimination cases that overlapped with and potentially excluded the High Court’s jurisdiction to hear anti-discrimination cases under the redress clause of the bill of rights in the Constitution.
Baroness Hale, giving the majority decision, acknowledged that it interfered with High Court jurisdiction, just not seriously so. Consequently, there was no constitutional breach of the separation of powers doctrine as articulated in Hinds. The majority’s approach, which has not been well-received in the Caribbean, would have been more persuasive if it made a candid assessment that Hinds went too far in suggesting the protection of the jurisdiction of the superior courts was absolute. It should have attempted to lay the foundation for a more realistic and grounded understanding of separation of powers, and in doing so, it would have been obliged to properly explain why its understanding should be preferred to that of the four local judges, one High Court and three Court of Appeal judges, about what the doctrine meant in Trinidad and Tobago.Courts have found themselves being asked to invalidate executive and legislative action on the basis of a very strict and naive idea of separation
of powers attributed to Hinds. Judges have been unsure about how to tackle this aspect of Hinds’ excess, especially when the quixotic version of separation of powers appears to conflict with the express provisions of the constitutions. In the death penalty cases Boyce and Matthew in 2004, lawyers claimed that the mandatory death penalty combined with the executive power granted by the constitutions to exercise the prerogative of mercy violated the separation of powers doctrine by allowing the executive to make the final determination of sentence.[1090] The Privy Council in these cases said that to the extent that separation of powers is a constitutional principle, it is not an overriding one but just �a pithy description of how the constitution works.’ They noted that the constitutions can themselves provide for an overlap of functions, as with the prerogative of mercy, and constitutional supremacy dictates that effect be given to that.
The Privy Council was correct to discourage the formulation of a strict, abstract and justiciable notion of separation of powers.
The provisions of the actual constitution must guide how the doctrine is formulated. We must look how the doctrine is �operationally defined’ by the constitutions.[1091] Still, the texts will not always be sufficient to resolve all questions about how governmental power is distributed. As Professor Lawrence Tribe explains, sometimes �it will be necessary to extrapolate what amounts to a blueprint of organizational relationships from the fundamental structural postulates one sees as informing the Constitution as a whole....’[1092] But once the proper parameters of the doctrine are determined in a given case, the doctrine cannot be described as merely �a pithy description of how the Constitution works.’[1093] Contravention of the principle leads to constitutional invalidity.D. Extending the Implied Principles: Tribunal Independence
In Suratt, the concept of implied constitutional norms as expressed in Hinds was both contained and extended. In her majority decision in Suratt, Baroness Hale concluded that even if it was determined that the new equal opportunities tribunal did not interfere substantially with the jurisdiction of the High Court (i.e., breach the Chapter in the Constitution dealing with the Judicature), there was a �question as to whether the protection given to the tribunal is adequate.’[1094] She then went on to evaluate the adequacy of the independence of the tribunal and concluded that the independence provided for was sufficient. Baroness Hale’s approach here represents a potentially dramatic development in Caribbean constitutional law. Although she barely acknowledged this herself, she in effect found that there was a constitutional requirement that the protection enjoyed by a tribunal or court must be sufficient to afford it the necessary degree of independence of the legislature and executive. Hitherto, the contours of judicial independence had been parsed out in relation to courts and judicial officers specifically mentioned in the constitutions, namely superior court judges and, to some degree, magistrates. The Privy Council left us with little more than suggestive language in Suratt. It made no attempt to explain the basis of this norm.
On one view, this implied principle of tribunal independence could be anchored to constitutional provision dealing with the protection of the law which guarantees the right to a fair hearing in accordance with the principles of fundamental justice for the determination of one’s rights and obligations under the Trinidad and Tobago Constitution.[1095] Other constitutions speak more directly about the right to a determination of one’s rights and obligations by an independent tribunal.[1096] Conversely, it may be viewed as an unwritten norm linked to the protection of other implied principles like separation of powers. The crux is that the value of tribunal independence which gives rise to a holding that executive or legislative action is unconstitutional cannot be an abstract strict or fixed standard. The standard will differ for inferior and superior courts and it will evolve and should be assessed having regard to the provisions of the constitutions and our legal and constitutional history.[1097]
Like the other implied constitutional norms discussed here — judicial review and separation of powers - judicial independence represents a grand general concept that is �uncontroversial when stated in abstract form.’[1098] These principles are all strongly interrelated and seen as aspects of the basic structure of the constitutions.[1099] At the same time, we are left with thorny questions about their precise definition as justiciable constitutional rules.
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