The Rule of Law in Caribbean Constitutional Law
Joseph is yet another Caribbean case that invokes the �multi-layered’[1022] and contested concept, the rule of law. There is no coherent theory about the place of the rule of law in Caribbean constitutional law.
Still, we can discern an underlying principle, that the rule of law eschews the exercise of arbitrary power and implies principles of rationality and fairness as a bulwark against arbitrariness.[1023]Often it is invoked in Caribbean public law cases as a general value that must influence how laws are made and administered, including judicial decision-making. Judges routinely remind us that no one is above the law. From the �prime minister down to a junior clerk,’ everyone is responsible for their actions before the law.[1024] The law must be applied without favour. Conversely, the principle of equality means no one should be singled out for adverse treatment just because they are high-ranking public officers.[1025] Forcefully, but still in a general way, Lord Hoffmann’s renowned dissent turned to legal certainty as an aspect of the rule of law to castigate the majority in Neville Lewis.[1026] His peers overruled many of the Privy Council’s earlier decisions and Lord Hoffmann warned that: �If the Board feels able to depart from a previous decision simply because its members on a given occasion have a “doctrinal disposition to come out differently”, the rule of law itself will be damaged and there will be no stability in the administration of justice in the Caribbean.’[1027]
Beyond these general references to the rule of law, the constitutions and specific provisions within them are understood to embody the principle of the rule of law. The concept thus influences the interpretation of those provisions. Judges have gone further in relation to certain aspects of the rule of law - legal certainty, procedural fairness and access to the courts.
They give them considerable weight and have begun to treat them as overarching constitutional principles, even though they do not consistently name the rule of law as the fundamental value in operation.A. The Constitutions Express a Commitment to the Rule of Law
Very directly, the preambles of most Caribbean constitutions state that freedom is premised on the rule of law.[1028] Other provisions, especially those in the bills of rights, are understood to embody the principle as well. The hallowed constitutional right to due process is widely accepted to invoke �the concept of the rule of law and universally accepted standards of justice observed by civilised nations which observe the rule of law.’[1029] As Wit J puts it, �[t]he law cannot rule if it cannot protect’ and the principles of fairness, reasonableness and rationality implied in the due process right are all designed to protect against arbitrariness and abuse of power.[1030] �Due process,’ language used in the Trinidad and Tobago Constitution,[1031] connotes procedural fairness and covers the same ground as the right to the �protection of the law’ found in other Caribbean constitutions.[1032] The detailed right to the protection of the law in Caribbean constitutions contains standard elements of the rule of law, like the right to a fair hearing by an independent and impartial tribunal and the non-retrospective application of criminal laws.[1033] The redress clauses in Caribbean bills of rights are associated with the rule of law’s demand for access to justice and effective relief. [1034] Citizens must have access to an independent and impartial judiciary to resolve all justiciable disputes. Recently, the Privy Council added that a wholesale contempt for the rule of law might warrant an additional award akin to exemplary damages to ensure effective relief.[1035]
The bills of rights as a whole are viewed as aimed at securing the rule of law.[1036] This understanding is very evident in the interpretation of the proviso within section 13 of the Trinidad and Tobago Constitution which deals with Special Acts.
These are Acts of Parliament passed by certain special majorities, in accordance with section 13, that are valid even though they are inconsistent with the bill of rights. The proviso within section 13(1) permits a challenge to a Special Act if it is shown that the law is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. In Lassalle v AG,[1037] Phillips JA treated this proviso as �intended to operate against the introduction of a system of administration of justice which is contrary to the precepts of the rule of law.’[1038] It is said to establish due process, an element of the rule of law, as an �irreducible minimum standard’ for constitutionality.[1039]Judges root core constitutional norms like separation of powers and judicial independence in the rule of law. Separation of powers is described as a principle of good governance based on the rule of law which involves checks and balances designed to prevent abuse of governmental power and its concentration in one arm.[1040] Judicial independence, the strongest element of the separation of powers, is also said to be implicit in the rule of law.[1041] Judges cannot rule in accordance with the law and provide access to impartial justice if they are subject to undue pressure or influence from other branches.
More controversially, the rule of law’s demand for the �creation and maintenance of an actual order of positive laws to govern society’[1042] is the latest explanation for the Caribbean’s restrictive savings law clauses. It has been suggested that they may be explained by the need to ensure an orderly transfer of power to new independent democracies through the continuity of law.[1043] This pragmatic explanation has given some impetus to a restrictive interpretation of these damning clauses.[1044]
B. Legal Certainty and Limits on Fundamental Rights
The rule of law demands that laws be certain so that citizens can regulate their conduct.
This is exemplified in the constitutional proscription of retrospective criminal laws.[1045] It has been little noticed that legal certainty, a version of the European human rights principle of legality, has become an implied precondition for determining whether a statute that limits fundamental rights is constitutional. In de Freitas v Permanent Secretary,[1046] the question was whether a statute that unreasonably infringed the right to freedom of expression could be saved by the application of the presumption of constitutionality used as a canon of construction; put differently, could words be implied into the statute to remedy the constitutional defect? Lord Clyde said that such a solution would only be acceptable if it met the standard of legal certainty, that is, if the modified provisions were formulated with sufficient precision to allow the citizen to know what was prohibited and to regulate his or her conduct. The standard applies to statutes that limit liberty in general and not only where the presumption of constitutionality has been applied to try and save an unconstitutional law.[1047] The impact of non-compliance is clear. Legislation that is �hopelessly vague must be struck down as unconstitutional.’[1048]The requirement of certainty is not explicitly mentioned in the constitutions but it could be located in the fundamental rights and the permissible limits on them.[1049] The standard approach in Caribbean bills of rights is to declare the right, and then say �nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision....’[1050] We might say that a statutory provision that restricts fundamental rights will not be viewed as a �law’ that is justified if a citizen cannot reasonably predict what the law seeks to regulate or constrain. An alternate explanation for the rule of certainty does not rely on the text itself, but claims that legal certainty is a constitutional standard that arises from the implied justiciable norm of the rule of law.
The standard of legal certainty, as an aspect of the rule of law, should apply to other laws whose validity the constitutions protect, notwithstanding their infringement of fundamental rights and freedoms. The general savings law clauses immunize �laws’ in existence before the appointed date from judicial review on the ground that they infringe a fundamental right.[1051] We should conclude either that a statute that fails to meet the requirements of legal certainty is not a �law’ for the purpose of these clauses and cannot enjoy their protection, or that legal certainty as an aspect of the rule of law is a fundamental constitutional standard that transcends the bill of rights, and thus also transcends savings law clauses. The immunity in respect ofjudicial review provided by the general savings law clauses is limited to bill of rights complaints. It does not provide protection against challenges on grounds of legal certainty. The same reasoning should apply to �Special Acts’ as provided for in section 13 of the Trinidad and Tobago Constitution. Special Acts are valid despite their inconsistency with the bill of rights. The constitutional provisions dealing with Special Acts provide no protection against a challenge on a non-bill of rights ground, and arguably legal certainty is such a ground.
C. Due Process, Access to Justice and Constitutional Ousters
The rule of law demands access to justice. You must be able to �get to the court room door’ and once in the door, you are entitled to procedural fairness and an effective remedy. These aspects of the rule of law have functioned as trumps that settle the tension between different provisions of the constitutions. For instance, the constitutions give parliament the power to determine its parliamentary privileges in ordinary legislation and those privileges are subject to the right of access to effective relief for breaches of fundamental rights.55 In Toussaint,66 the Privy Council said that the rule of law and separation of powers meant that judges should not be impeded in determining the scope of fundamental rights.
Courts have restricted the application of constitutional ouster clauses limiting judicial review in respect of the operation of service commissions and the exercise of the prerogative of mercy on the basis that giving full effect to them would undermine the right to due process and redress under the bill of rights. The Privy Council’s more formalistic reasoning in Thomas v AG61 - that the maxim of interpretation generalia specialibus non derogant when applied meant that the specific right to due process and redress could not be undermined by the general no-judicial review clause - is over time being replaced by a more normative claim that the limit on access to justice and procedural fairness contravenes core expectations of the rule of law and respect for fundamental rights.
In Joseph, de la Bastide P and Saunders J said that as a general principle courts would not be discouraged by constitutional ouster clauses from inquiring into whether a body performed its functions in contravention of the bill of rights, particularly the right to procedural fairness.[1052] [1053] [1054] The litigants in Joseph did not need to prove that they fell within the detailed provision of the bill of rights, section 18, which deals with protection of the law because the �court quite independently of [the redress clause in the bill of rights], has an implied or inherent power to give redress for such a violation.’[1055] 4.