Introduction
The Caribbean Court of Justice’s (CCJ) first major decision, AG v Joseph,[998] an appeal in a death penalty case from Barbados, invites us, albeit not plainly, to look beyond the texts of Caribbean constitutions and to have regard to unwritten principles, especially the rule of law, as a fundamental source of Caribbean constitutional law.
The Court held that capital defendants have a legitimate expectation that their petitions before international human rights tribunals would be dealt with before carrying out the death sentence. The joint decision of de la Bastide P and Saunders J justified this entitlement with reference to the �inherent jurisdiction’ of the superior courts to grant constitutional relief to give full effect to the �protection of the law.’ Wit J had a similar tack. He described the constitutional text as �merely a reflection of the fundamental right to the protection of the law.’[999] The CCJ’s analysis suggests that the �protection of the law,’ an aspect of the rule of law, is elevated to an implied justiciable constitutional norm.This chapter starts where many discussions of Caribbean constitutional law do, with the doctrine of constitutional supremacy. But here with a caution that this doctrine cannot resolve all important questions in constitutional law and that there will always be the need to rely on unwritten norms. I go on to look briefly at the role of the rule of law in Caribbean constitutional law as a precursor to examining Joseph’s analysis of the right to the protection of the law. Since Hinds v R[1000] lays the strongest foundation for Joseph’s provocative talk of an �inherent’ constitution, some attention is paid to the lessons we can learn from it and its progeny. Next are some less noticed decisions that begin to take seriously the idea that Caribbean constitutions have a normative foundation, which is a critical starting point for discussion around unwritten constitutional norms. And finally, it will be explained more fully why treating the rule of law as an unwritten constitutional norm can be a good development for Caribbean constitutional law.
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