The Rule of Law as a Fundamental Justiciable Constitutional Norm
The direction Joseph obliquely points us in — acknowledging that the rule of law or certain aspects of it are independent implied justiciable constitutional norms — can be cautiously defended with reference to both principle and precedent.
We are more at ease in saying our constitutions have a normative core that guides interpretation. We have accepted that separation of powers, a core element of the rule of law, is a fundamental unwritten justiciable constitutional principle. We seem to now view judicial independence, another aspect of the rule of law, as a norm that is enforceable beyond the explicit provisions of the constitutions. In addition, we have given some shape to aspects of the rule of law - legal certainty, procedural fairness and access to the courts - as pre-eminent constitutional values that find expression in particular constitutional provisions but whose applicability is not confined to those sections. Procedural fairness and access to the courts as aspects of the rule of law have trumped explicit constitutional provisions limiting judicial review.All of these strands of Caribbean constitutional law have a measure of inscrutability. The new interest in the rule of law provides an opportunity to shed light on them and settle some old disputes in an honest way — including what the seminal Privy Council decision Hinds v R stands for today. Hinds is a pioneering case with a panoramic read of Westminster- styled constitutions and has become a foundational authority in Caribbean and Commonwealth constitutional law. That very quality - its expansive assertions about these decolonization constitutions — also has made it susceptible to a growing list of judicial and academic provisos. However, so much in Commonwealth constitutional law has come to depend on the �very important and salutary principle’ of separation of powers derived from Hinds as an expression of the rule of law and an essential component of democracy, that the Judicial Committee is very reluctant to overtly disrupt it.[1124] Awkwardly, it has undercut some of the key assumptions we have made about what the case means, without providing any clarity about the basis of implied norms, how they function, their relationship with the constitutional provisions and their precise meaning.
The CCJ must do more than talk about inherent constitutional principles, it needs to make sense of a generation of disjointed jurisprudence around Hinds and establish a principled basis for thinking about implied constitutional norms. Appreciating that the boundary between written and unwritten is less distinct than we might think is a critical starting point.Beyond this, I am attracted to the idea of thinking of the rule of law as an implied justiciable constitutional norm, part of the substructure of Caribbean constitutions, because it offers a way of making the constitutions more our own, �resilient and amorphous.’ This has a counterintuitive ring to it since the usual critique of the unwritten constitution lies in democracy, that it cedes power to the judiciary to reshape our constitutions, doing violence to the supremacy of the texts as drafted and the constitutions’ democratic requirements for amendments.[1125] Put another way, it allows judges to usurp the lawmaking powers of the legislature and engage in judicial activism, promoting their own views, rather than national values.
This is an important criticism but it is far removed from the present predicament of Caribbean constitutional law and politics. The argument from democracy, that it should be left to our legislatures to generate any changes as to how we think about our constitutions, must pay attention to the fiercely partisan political scene in the Caribbean. The conventional mechanism of higher lawmaking through constitutional amendments is incapacitated by oppositions that have sufficient parliamentary force to veto important constitutional reforms entirely on partisan political grounds. Alternatively, the amendment process is exploited for �normal politics’ by governments who have the overwhelming majorities in parliament required for constitutional reform. With this stalemate, Caribbean people likely will turn increasingly to the courts to articulate and uphold the society’s fundamental constitutional values and to temper the vagaries of the political scene.[1126]
Rather than avoid unwritten norms like the rule of law, judicial legitimacy demands that our judges face directly the scope and place of unwritten constitutional norms.
Judges must do justice and not engage simply in �tabulated legalism.’ Not surprisingly, a small group of leading Caribbean judges - de la Bastide P, Wit J and Conteh CJ - appreciate that constitutional legitimacy and development depend in part on articulating the core values of our fundamental law. Unwritten constitutional norms offer the potential for a principled response to the tensions and contradictions within our constitutions by looking at their ethos. To return to my earlier argument, our constitutions are incomplete and in some key areas unclear and contradictory. We cannot over-privilege the texts of independence Caribbean constitutions as an expression of the will of the Caribbean peoples. We should search for some articulated political theory that gives coherence to the constitution as a whole and, having regard to those principles, attempts to resolve constitutional provisions that on the surface appear to conflict with each other, particularly those in the bills of rights.[1127]True, concepts like the rule of law are contested and hard to define. There is interminable disagreement about its meaning. The rule of law in particular is sometimes taken to mean any and everything about good governance and a just society. Our constitutional law will face some uncertainty if it gives serious weight to unwritten norms.[1128] But the interpretation of written provisions in our constitutions that are �drafted in a broad and ample style which lay down principles of width and generality’[1129] — the meanings of which we know evolve over time — present equal uncertainties. From this perspective, the chasm between the interpretation of written constitutional provisions and unwritten norms is not as great as it seems. Much of our constitutional law is already comprised of judicial precedents.
The post Hinds lesson is that if we recognize an implied justiciable constitutional norm like separation of powers, we must also accept that the meaning of the norm is not self-evident or fixed; rather it will unfold through the process of interpretation over time.
There will be disagreements about what it means, and understandings of it will evolve. But it is suggested we start by using the texts of the constitutions as a guide, having regard to our distinctive political history and our contemporary context. We should be slow to promote implied constitutional norms that have no textual grounding and the provisions of the constitutions should remain important to constitutional interpretation even when we accept that they rest on or are evidence of implied norms. Judges will have the exacting task of deciding whether the provisions reflect an implied principle but do not exhaust it.There is a risk that the �common law’ might derail the progressive development of implied constitutional norms. Caribbean common law constitutionalism relied heavily on existing laws and the common law as the source of constitutional fundamentals. Post independence common law constitutionalism gained a bad reputation for elevating ordinary existing or colonial laws to higher order norms, giving them normative force as the repository of constitutional and human rights principles. There have been repeated calls for models of interpretation less burdened by coloniality. Implied norms cannot ethically be made to rest on fantasies of empire or the �inferred framers intentions.’
Fraser JA’s judgment in Lassalle v AG[1130] opens the door to a less tortured role for the common law. He acknowledged that the common law was relevant in ascertaining the meaning of due process under the Constitution but he did not think that reference to the common law necessarily stagnated the development of the principle of due process.[1131] He viewed the common law as a â€?pragmatic system of rules and principles fashioned by the courts to meet the needs of society as those needs changed from time to time.’[1132] As a result, he saw due process as a multiÂdimensional concept that could be adapted and interpreted as justice demanded to meet the changing needs and situation in a country.[1133] His description of procedural due process rights in the constitution as not being â€?a comprehensive or exhaustive code’[1134] resonates with the joint judgment in Joseph.
This thinking is also consistent with the understanding that the constitutions as living instruments whose protections change over time and in light of new circumstances.[1135]In establishing how that pragmatic system of rules and principles evolves to meet the needs of the society we should look to the courts, but not exclusively so. The legislature, executive and popular constitutionalism can generate shifts in fundamental values. For example, although Barbados has no plain provisions in its Constitution dealing with the right to health, education and social welfare, the provision of those social goods is an undeniably fundamental value in Barbados and central to that nation’s identity. Or consider the failure of Barbados and The Bahamas to explicitly name sex as a prohibited ground of discrimination in their anti-discrimination clauses. It would be hard in the face of legislative advances and policy initiatives to protect the human rights of women and girls, and our international commitments to do the same, to say that protection against sex discrimination has not emerged as a fundamental principle of good governance and a just society and arguably an element of the protection of the law. We could reshape and recalibrate what we mean by respect for the common law to recognize these shifts in how we think and live while not holding Caribbean constitutional law hostage to common law supremacy or imperial romanticism.
The question of whether we should imply substantive rights from the rule of law is a contentious one.[1136] Peter Hogg and Cara Zwibel reject a doctrine of rule of law that is all encompassing. They candidly say that �the notion that the rule of law requires our laws to respect equality, human dignity and other good moral values is really just natural law in disguise.’[1137] Lassalle left the question of substantive due process rights to an appropriate case in the future.[1138] But it also conceded that the bill of rights as a whole - a source of substantive rights - was designed to give effect to the rule of law. Joseph clearly shows that gaps exist in the detailed enumeration of fundamental rights and freedoms in Caribbean constitutions that are hard to defend in our changing world. Rather than conclude that only the right in its narrower form was intended to be protected, the CCJ came to the opposite conclusion: that the narrow articulation in the detailed provisions could not prejudice the inherent constitutional jurisdiction to secure the protection of the law. Nothing forecloses this concept and other implied constitutional norms from becoming an avenue for elaborating an evolving constitutional protection of substantive rights in a principled way over time.
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