The Privy Council’s Approach
In recent years, the issue of whether a state had to await the decision of any international human rights body before it can lawfully execute a condemned prisoner was one that has been explored by the Privy Council in a myriad of decisions.
The law was in a state of confusion and has only recently given a hint of certainty by some rather dubious legal reasoning. In light of the subject matter at issue — the lawfulness of the execution of the condemned person — it is hardly surprising that the CCJ in Joseph and Boyce came to the conclusion that it did. It traversed the much-trodden terrain of decisions of the Privy Council relating to the question of whether the state must await the conclusion of any relevant international proceedings before it can lawfully execute the condemned man.[570] [571]A. Fisher v Minister of Public Safety and Immigration No 2
One of the first decisions where the issue of legitimate expectation was canvassed is Fisher v Minister of Public Safety and Immigration No 2.6 In that decision, the appellant initially argued that he had a legitimate expectation that he would not be executed while his petition to the InterÂAmerican Commission on Human Rights (IACHR) was outstanding.[572] However, by the time the matter came before the Privy Council, counsel for the appellant argued against his client’s execution on the grounds that: (a) the government having given an undertaking through counsel that it would abide by the IACHR Regulations, (b) the appellant had a legitimate expectation that the government would allow a reasonable time for the completion of the process, and (c) a reasonable time in the circumstances was not less than 18 months commencing on 16 December 1997.[573]
At the outset, the Board observed that �[t]he fact that a petition is pending might give rise to an argument in public law based on legitimate expectation which their Lordships consider and reject hereafter.’[574] The Privy Council dealt with the issue in the following manner:
The first of the public law grounds is that the appellant had a legitimate expectation that he would not be executed so long as his petition was outstanding.
But legitimate expectations do not create binding rules of law. As Mason C.J. made clear at page 291 a decision-maker can act inconsistently with a legitimate expectation which he has created, provided he gives adequate notice of his intention to do so, and provided he gives those who are affected an opportunity to state their case. Procedural fairness requires of him no more than that. Even if therefore the appellant had a legitimate expectation that he would not be executed while his petition was pending his expectation could not survive the Government’s letters of 2nd and 30th January 1998 in which it informed the appellant’s solicitors in unequivocal terms that it would wait no longer than 15th February 1998.[575]The Privy Council held, correctly, that there was no implication by virtue of the right to life that the executive would wait for any reasonable period before the appellant’s international petitions were completed; for that to happen, the treaty had to be incorporated into domestic law.[576] That much is trite law. However, it must be remembered that Fisher No 2 pre-dated the evolved thinking of legitimate expectations. To suggest now that the only way a substantive legitimate expectation can be protected is procedurally to overlook over 10 years of refinement and development of the concept. As we will see shortly, the courts have specifically jettisoned such notions. Specifically, the statement of the Privy Council that �Legitimate expectations do not create binding rules of law’[577] is clearly now incorrect in light of the modern approach to legitimate expectations. In their dissent, Lords Slynn and Hope accepted that the statements by the government had:
...provided Fisher with a legitimate expectation that, if the IACHR were to recommend against the carrying out of the death sentence, their views would be considered before the final decision is taken as to whether or not he is to be executed. But any such recommendation would plainly be pointless if he were to be executed before the recommendation was made and communicated to the Government.[578]
However, their Lordships noted that:
We fully accept that a change of policy might be announced to prevent legitimate expectations arising in the future, but we do not read the judgment as saying that once a procedure like the present has actually begun that a Government can by a unilateral announcement terminate legitimate expectations already created.[579]
The minority decided that a legitimate expectation existed but that it could be defeated by a clear change in policy by the government.
Implicit in their argument was that where such a change of policy is effected, it would defeat any expectations going forward, but would not affect those expectations already created. The minority accepted the argument of counsel for the appellant that �as a matter of good administration the law required his legitimate expectation to be respected, and that he should not be executed until the decision of the IACHR is received, and that to do otherwise would be a wholly unreasonable exercise of the power or discretion.’[580]This statement anticipates the current view relating to what lies at the heart of the concept of legitimate expectations; good administration requires public authorities to act fairly towards members of the public, in particular, those whose legitimate expectations are frustrated by changes in policy and retraction of promises made. The interest by applicants in pushing the argument relating to legitimate expectations continued unabated, focusing now on establishing the expectation from statements made by the executive rather than locating it merely in ratification of the relevant treaty.
B. Thomas v Baptiste
Unsurprisingly therefore, the issue arose again for consideration in Thomas v Baptiste.[581] In that decision, the law took a turn for the worse, in my view, with a differently constituted Board, holding that the �due process’ clause in the Constitution of Trinidad and Tobago extends to the appellate process as well as the trial itself and includes �the right of a condemned man to be allowed to complete any appellate process or analogous legal process that is capable of resulting in a reduction or commutation of his sentence before the process is rendered nugatory by executive action’.[582] The illogicality and plain result-oriented decision of the majority was laid bare by the minority who argued that due process could not, bar incorporation, extend to international law and that the terms of international treaties could not extend the due process clause which was only concerned with municipal law, and not international law.[583]
Notwithstanding the criticisms that can be made of the reasoning of the Privy Council in Thomas, their arguments relating to legitimate expectations could hardly be regarded as authoritative, because the issue as the Board saw it was whether �the Government’s ratification of the Convention gave rise to a legitimate expectation on the part of the appellants that they would not be executed before their petitions to the IACHR were finally determined.’[584] In other words, the appellants contended that ratification alone gave rise to this legitimate expectation.
The state, however, claimed that (a) �ratification is a private process which is not attended by public notice and that the ratification of the Convention was a transaction between the Government of Trinidad and Tobago and the Organisation of American States’;[585] and (b) �[t]here was no public statement that the Government had ratified the Convention and the appellants were not informed of the fact.’[586] They also submitted that ratification of an unincorporated treaty: (a) �is incapable of raising a legitimate expectation that the Government will comply with the provisions of the treaty’;[587] or (b) �raises at best a legitimate expectation that the Government will introduce appropriate legislative measures to give effect to the treaty.’[588]20.
21.
22.
23.
These actions, even when taken together, hardly amounted to an unequivocal statement by the state that it would abide by its international treaty obligations in relation to the condemned men. It was, therefore, hardly surprising that that view was rejected by the majority of the Board, because if it were accepted it would mean that that reasoning would, in principle, also be applicable to other international treaties - a conclusion the Privy Council would not countenance. In rejecting the arguments, the Privy Council stated that:
In their Lordships' view, however, the appellants' arguments based on legitimate expectation face an insurmountable obstacle. Even if a legitimate expectation founded on the provisions of an unincorporated treaty may give procedural protection, it cannot by itself, that is to say unsupported by other constitutional safeguards, give substantive protection, for this would be tantamount to the indirect enforcement of the treaty... In this sense legitimate expectations do not create binding rules of law. The result is that a decision-maker is free to act inconsistently with the expectation in any particular case provided that he acts fairly towards those likely to be affected.
But mere procedural protection would not avail the present appellants. Any legitimate expectation that their execution would be delayed until their petitions were heard, however long it might take, cannot have survived the publication of the Instructions. The question is not whether their legitimate expectations were lawfully disappointed, but whether they were in fact disappointed.[589]Lords Goff and Hobhouse, who dissented, merely noted that they �also agree that the doctrine of legitimate expectation is of no assistance to the appellants on the fact of the present cases.'[590] Importantly, the minority pointed out that they �accept that treaty obligations assumed by the executive are capable of giving rise to legitimate expectations which the executive will not under the municipal law be at liberty to disregard'.[591] However, they noted that �in the present case there was not at the material time any legitimate expectation' and that on this point, they agreed �with what is said in the judgment of the majority.'[592] The minority further observed that:
The rights which are protected are those set out in the Constitution, including those previously existing in the law of the Republic. This does not include (without more) expectations raised by treaties entered into by the executive which have not been incorporated into the law of the Republic, though in such cases the municipal law doctrine of legitimate expectation may, where appropriate, be invoked by individual citizens.[593]
Soon thereafter, in the light of day, the Thomas line of reasoning became exposed. However, Lord Millet, although not overruling Thomas, shook the very foundations of that decision by declaring in Briggs v Baptiste[594] that Thomas �did not overturn the constitutional principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation.’[595] But, it was clear to legal practitioners and academic lawyers that that was exactly what Thomas sought unashamedly to achieve.
The majority in Lewis'[596] also pointed out that Thomas �did not decide that the recommendations of the commission are directly enforceable in domestic law (which are not binding even in international law) or the orders of the Inter-American Court are directly enforceable in domestic law.’[597] There was no mention of legitimate expectations.So although the Privy Council, sitting on an appeal from The Bahamas, in Higgs v Minister of National Security[598] thought Fisher No 2 indistinguishable from the instant case, it simply noted that the Privy Council in Thomas did not cast doubt on the correctness of Fisher No 2.[599] Since The Bahamas did not have a �due process’ clause, or an analogous clause like �protection of the law,’ as was the case in Lewis in Jamaica, the Board in Higgs and Mitchell held that the Privy Council in Thomas �did not regard the common law concept as having the power (absent specific language in the Constitution) to incorporate procedures having an existence only under international law into the domestic criminal justice system.’[600] Therefore, the Privy Council held that unincorporated treaties have no effect upon the rights and duties of citizens at common law or by statute, and that:
They may have an indirect effect upon the construction of statutes as a result of the presumption that Parliament does not intend to pass legislation which would put the Crown in breach of its international obligations. Or the existence of a treaty may give rise to a legitimate expectation on the part of citizens that the government, in its acts affecting them, will observe the terms of the treaty.[601]
The Privy Council, citing Teoh, observed that:
In this respect there is nothing special about a treaty. Such legitimate expectations may arise from any course of conduct which the executive has made it known that it will follow. And, as the High Court of Australia made clear in Teoh’s case, the legal effect of creating such a legitimate expectation is purely procedural. The executive cannot depart from the expected course of conduct unless it has given notice that intends to do so and has given the person affected an opportunity to make representations.[602]
What decision the Privy Council would make in relation to this issue was certainly as predictable as a coin toss.
C. Lewis v AG
Notwithstanding the doubts expressed in Briggs, and Higgs and Mitchell about the reasoning of the Privy Council in Thomas, the Board was so confident with its reasoning in Thomas that it extended it, in Lewis v AG,[603] to the �protection of the law’ clause in the Constitution of Jamaica 1962. In relation to legitimate expectations, the Privy Council observed that:
Moreover since legitimate expectations did not create rules of law the government could act inconsistently with those expectations so long as it gave those affected an opportunity to put their case. Since the appellant was given notice that the government would not wait beyond the fixed date for the Commission to report they could no longer have a legitimate expectation that the government would wait for that report. The government had in all the circumstances of that case acted reasonably.[604]
The Privy Council also pointed out that:
Nor can there be any question of the prisoners having had a legitimate expectation (as the term is now understood in administrative law) that the state would await a response to their petitions. All the petitions were presented after the Government had issued the Instructions and a legitimate expectation can hardly arise in the face of a clear existing contrary statement of policy.[605]
Commonwealth Caribbean law was in a complete state of disarray, with both appellants and states seeking to advance their arguments before differently constituted Boards more sympathetic to their points of view. The dissents of yesterday became the majority decisions of today - a concept that cannot but bring a high degree of uncertainty to Commonwealth Caribbean constitutional and human rights law.
3.