The CCJ Decision
It was against this tumultuous background that the decision of the CCJ in AG v Joseph[606] came to be decided. De la Bastide P and Saunders J gave the leading judgment of the Court.[607] They accepted that the law in this area is unsettled and still evolving,[608] and that there is a huge divergence of opinion and approach between different courts, but also between judges of the same court.[609] Punishment by death, we are told, is �punishment in a class of its own, warranting special procedures before it is carried out.’[610] The court alluded to four approaches represented in the case law.
The first, as espoused by the House of Lords in ex p Brind, was that such conventions do not create binding rules of law.[611] Second, execution of the condemned person before exhaustion of his international petitions was �cruel and inhumane punishment’.[612] Third, there is the approach adopted by Thomas and Lewis, which, the CCJ made clear when it stated, �we have expressed our disagreement.’[613] The fourth one, relating the use of legitimate expectations, clearly piqued the interest of de la Bastide P and Saunders J.[614]Commonwealth Caribbean courts have not grappled with the central issues which lie at the heart of legitimate expectations, in particular, legal protection for substantive legitimate expectations.[615] However, it
has raised its ugly head in the context of death penalty litigation in the Commonwealth Caribbean, and there has been a dearth of decisions by the Privy Council making reference to this public law concept to give life to appellants’ argument that the state is obliged to await the conclusion of the international legal process they had initiated before it can lawfully execute them. These decisions have not dealt with the issue of, first, the method by which such legitimate expectations are actually created; second, where they are created, whether they lead to only procedural as opposed to substantive legitimate expectations; and, third, what test should the courts use in determining whether to give effect to a substantive legitimate expectations.
The decision in Joseph will be analysed to also understand whether, first, the CCJ was at all cognizant of the implications of its recognition of substantive legitimate expectations and, second, the test used by the CCJ was one which could properly guide the courts going forward in relation to substantive legitimate expectations. For present purposes, the conceptual difficultly raised by the subject matter of the legitimate expectation in Joseph and Boyce has been put aside - an unincorporated treaty - and focus will be placed on those aspects of the decision that have far-reaching implications for Commonwealth Caribbean public law.
4.