Supremacy’s Inadequacies

Early Caribbean public law scholarship shed light on the distinctiveness of postcolonial Caribbean public law: the paradigm shift brought about by constitutional supremacy and justiciable bills of rights, the demise of parliamentary sovereignty as it had been known,^[1001] and the basis and scope of judicial review, both of legislation^[1002] and administrative action.^[1003] Professor Albert Fiadjoe has offered up a public law that has come of age, a revolution in Caribbean public law as a result of the written constitutions and new judicial review legislation.^[1004]

But as jurists underlined the primacy of the written constitutions they faced a dilemma: how seriously should one take supreme laws that marginalize protection of fundamental rights with savings law clauses^[1005] and explicitly exclude the possibility of judicial review through ouster clauses.^[1006] The texts of Caribbean constitutions have internal contradictions that cannot be resolved satisfactorily by referring to constitutional supremacy.

Quite apart from contradictions in the texts, the written constitutions cannot answer all the complex questions of governance and liberty that arise from our constantly changing global, regional and local spheres. In many instances, the texts simply do not say enough to resolve the questions at hand because they are drafted in some critical places with a high level of generality.

While constitutional supremacy is undeniably our starting point as public lawyers, it has not been enough to brace a maturing Caribbean public law. The usual argument for giving pre-eminence to the text, that the written constitution reflects choices and institutional arrangements made by �the people,’ has considerably less weight in respect of Caribbean independence constitutions which were not generated by highly democratic processes. For Professor Simeon McIntosh, this introduces a profound question of moral and political legitimacy — that these constitutions are not really our own.^[1011] While McIntosh is evidently pressing for constitutional reform using democratic processes, constitutions also can be owned or made more autochthonous through processes of interpretation and developing particular �habits of constitutionalism.’^[1012] The comparison of constitutional texts to ill-fitting uncomfortable leather shoes that adapt to meet the feet of the wearer over time is an apt one.^[1013]

Ultimately, constitutional meaning cannot be derived solely from reading the constitutional texts as drafted, not if we expect the constitutions to endure. The fundamental law can never entirely be captured in a written constitution. There will always be a need to �resort to implicit or unwritten principles of legal decency.’^[1014] It must be the business of Caribbean constitutional law to sort out far more clearly what those implicit and unwritten principles are, when they apply and their role in our constitutional order.

Since Hinds v R,^[1015] it has been acknowledged that Caribbean constitutions �leave much to implication’^[1016] and unwritten constitutional principles have served as �gap-fillers.’ Strong inferences are made from the constitutions and their structure; these fill gaps in the written constitutional schemes and are treated virtually as if they are part of the written constitutions.^[1017] Another shade of this approach sees unwritten principles as �constitutional values,’ ideals that influence the interpretation of explicit provisions of the constitutions.^[1018] If asked, we likely would say that this process gives depth and meaning to the written texts themselves.

There is serious disputation among constitutional scholars and judges about an even more expansive role for unwritten constitutional principles in the constitutional order that Joseph tentatively aligns itself to, in which �the constitutional text is not just supplemented by unwritten principles; it rests upon and reflects them.’^[1020] These principles are foundational and will in certain circumstances be treated as supreme, binding all state actors, even in the absence of and, in extraordinary cases, in spite of, an explicit constitutional provision. Radically, it might be argued that certain indefensible constitutional amendments could be challenged on the ground that they amount to a pernicious violation of unwritten constitutional norms.^[1021]

3.