Normative Core of the Constitutions
Unwritten constitutional principles will have the greatest legitimacy when they are suggested by and reflected in the constitutional texts themselves as core values and standards that �animate’ and �breathe life’ into the texts.[1100] There is now an embryonic practice of identifying such values in Caribbean constitutions that has been championed by very prominent judges.
If the concept of implied justiciable constitutional norms owes its roots to Hinds, then the notion of core constitutional values and the need for resistance to over-legalistic and literal approaches to interpretation take their cue from Lord Wilberforce’s famous judgment in Minister of Home Affairs v Fisher.[1101] In Joseph, Wit J presented our constitutions as �qualitative and normative document[s]' and not just formal technical instruments.[1102] As such, their interpretation must avoid �the austerity of tabulated legalism’[1103] in order to give effect to the values and standards expressed in the text.[1104]Judges now take it for granted that separation of powers is a fundamental core constitutional value. The dignity of the human person, protection of fundamental rights and freedoms and respect for the rule of law have also found some acceptance as the normative core or conscience of the Caribbean constitutions.[1105] Conteh CJ of Belize in Bowen v AG[1106] is the most unrestrained in naming the core. Attracted to the Indian concept of a �basic structure’ to our constitutions, he includes separation of powers, the rule of law, judicial independence, democracy, protection of fundamental rights within the core values. Until recently, judges stopped short of claiming these core values were separately enforceable. Instead, they gave them considerable force in guiding the interpretation of the texts.
But Wit J in Joseph and Conteh CJ in Bowen go further; for them the normative core or basic structure establishes what is inherent and virtually unassailable in Caribbean constitutions.A. Preambles
All Caribbean independence constitutions, except Jamaica, have preambles. They begin, �we the people of...,’ establishing the authorship of the constitutions. They express the moral and political aspirations of the political community. This includes affirmation of the principle of the rule of law, human dignity and the pre-eminence of individual freedom and human rights. Many also express a strong desire for social and economic equality and some mention regard for civil, political, social, economic and cultural rights.[1107] Caribbean judges have turned to the language of the preambles — �Men and institutions only remain free when freedom is founded on the rule of law’ — to confirm the rule of law as a constitutional value. Judges must uphold it[1108] and have regard to it in interpreting constitutional provisions, like the redress clause in the bill of rights that expresses the rule of law’s commitment to access to justice.[1109]
The place of the preamble in constitutional interpretation is receiving growing attention by modern courts. Although not separately enforceable, increasingly courts are stressing that that they are not �pure embellishment’[1110] or �meaningless verbiage or empty rhetoric.’[1111] In Bowen v AG, Conteh CJ said that there was �an indissoluble link, an umbilical cord, if you will, between the Preamble of the Constitutions and its dispositive provisions’; the preamble, he argued, �animates’ the constitutions.[1112] In Matthew v State,[1113] the dissenting opinion, which is destined to gain more prominence and force, noted that while the preamble could not override the clear words of the constitutions, courts could have regard to the preambles in interpreting the texts. It added that interpretations that conflicted with the preambles would be suspect.[1114]
De la Bastide CJ, as he then was, argued that the Trinidad and Tobago republican constitution was �resilient and amorphous,’ capable of change in response to the needs of the people.[1115] He acknowledged that it would be difficult to figure out the appropriate direction in which to chart progress through constitutional interpretation, but said that if �we bear in mind the right principles and we focus on the preamble our task can be made a little lighter.’[1116] Conteh CJ recently went a bit further, saying that the new preamble to the Belize Constitution was more than an aid to interpretation because �it fills the text with meaning and gives the Constitution itself a shape and form reflecting the very essence, values and logic of the Belizean people.’[1117] The preambles of the republican constitution of Trinidad and Tobago and the reformed Belize constitution are post-independence preambles crafted and approved in Caribbean lawmaking spheres.
In a turn around, the Chief Justices in both territories relied on them to counter the traditional critique of Caribbean constitutions - that they are not really our own - treating the preambles as the best evidence of the values, desires and hopes of �we the people.’B. Opening Sections to Bills of Rights
The bills of rights, and particularly their opening section, are the other normative nerve centre of Caribbean constitutions. As already mentioned, there has been a fierce debate about whether these opening sections give rise to enforceable rights. The descriptions of most of the opening sections as mere preambles and purely declaratory is at best misleading because the section has been at the heart of rights adjudication under the constitutions for over four decades. The opening section has been one of the most judicially cited provisions in the bill of rights precisely because of its clear enunciation of core values and standards around human rights, human dignity and liberty.[1118] Courts refer to it as a relevant provision in examining the scope of fundamental rights and freedoms under the bill of rights.[1119] In exploring a detailed right, it has been said that �it is important to reiterate the basis on which [the bill of rights] was drafted’ and that the opening section is material to that inquiry.[1120]
In Fisher,[1121] the locus classicus on interpretation of Caribbean constitutions’ bills of rights, Lord Wilberforce said that the generality of this section, �Whereas every person in Bermuda is entitled to fundamental rights and freedoms...’ underlies the whole of the chapter and helped him to conclude that a broad interpretation of �child’ should be adopted. More recently, Lord Craig accepted in Watson v R.'-6 that the rights and freedoms declared in the opening section of the Jamaica Constitution must be generously interpreted to give full effect to the protection of fundamental rights and freedoms.[1122] [1123] Calling a constitutional provision a preamble used to be a tidy way of dismissing it, but prominent Caribbean judges have shown very persuasively that there is an �umbilical cord’ between such provisions and the rest of the constitutions. Even if what we think of as preambles are not the source or originator of rights or norms, they might underscore them and often are the strongest expression of fundamental norms that inhere in the constitutions. They are indispensable, not peripheral to the interpretation of Caribbean constitutions. 7.