�The Habits of Constitutionalism’ [72]

By tracing the trajectory of the jurisprudence of the Judicial Committee of the Privy Council from its early cases, Margaret DeMerieux reveals how the Board over time weaned itself from its absolute reliance upon the common law. Foundational cases such as Nasralla^li reveal the Privy Council deciding issues on the basis of the existing law and the common law, even in the face of stated constitutional rights. The old approach was to treat constitutional bills of rights as codifying or leaving the common law unchanged. Demerieux notes a shift, by the end of the 1970s and early ’80s, to recognizing that the constitutional provisions provided for rights differing in scope from those available at common law, including new rights, and could found an independent cause of action.

With few exceptions, the post-1960 constitutions marking self­government or independence from Britain all contained bills of rights, a dramatic turnaround in British decolonization policy.^[82] The thinking at the time the bill of rights in the 1960 Nigerian Constitution was drafted, which became the model for the Commonwealth including the Caribbean, was that an entrenched bill of rights would better protect minority groups. Ironically, Caribbean independence constitutions have been the least durable in the most plural and ethnically diverse Caribbean countries: Belize, Guyana and Trinidad and Tobago. The last two - Guyana and Trinidad and Tobago, now republics, are the only countries in the region that enacted new constitutions after independence. Belize’s independence constitution of 1981 still governs, but it has undertaken far more radical reforms than its Caribbean neighbours with much older independence constitutions.

Stark gaps can be found between the constitution on paper and its workings in Caribbean countries, evidence that the habits of constitutionalism are not always well entrenched. Arif Bulkan shows how �bare’ constitutional protections for judicial independence in Guyana have been evaded or manipulated by governments outright.^[83] For example, judicial appointment processes have been subverted by the creation of new judicial offices, by a failure to adhere meaningfully to consultation requirements and by a refusal to consent to the appointment of a replacement judicial officer when a position became vacant, thereby requiring temporary appointments.

Guyana became the third English-speaking Caribbean country to gain independence in 1966; Belize in 1981 was one of the last. Godfrey Smith points out one distinct advantage of later independence. In the case of Belize, it had the benefit of 20 years of vicarious constitutional experience from its neighbours in the Caribbean and Commonwealth to guide it in the constitution making process. To begin with, it did not include many of the stultifying aspects of the earlier constitutions. Its general savings law clause had limited application, it gave explicit right to redress for breaches of the opening section to the bill of rights and it included the right to work. Smith argues that these changes gave judges a head start in expanding the frontiers of constitutional interpretation.

It is plain that the advancement of constitutionalism is not the �exclusive province of the judiciary.’^[85] Constitutional reforms introduced to ensure greater respect for the rule of law can be sidestepped by the executive. On the other hand, there is some indication that Caribbean legislatures can play a meaningful role in developing the habits of constitutionalism. Smith describes in Belize a �symbiotic, mutually re-enforcing dynamic between the judicial and the legislature’ in which the Belize legislature has been �proactive, even aggressive’ in developing the constitution since independence. Most amendments, almost counterintuitively, expanded citizen rights, strengthened judicial independence and gave the Senate unprecedented power.

Despite the hope that legislatures will deepen constitutionalism through ethical constitutional reform, undertaken alongside broad­based consultations, Bulkan and Robinson think that in the immediate future, more will turn on what judges do. Since 1991, virtually every single Commonwealth Caribbean country has been engaged in some constitutional reform process. These have been stalled by oppositions with sufficient parliamentary force to veto reforms on partisan political grounds or by new governments unwilling to pursue reforms already underway. The question is whether the development of unwritten or implied constitutional norms by the judiciary could buttress constitutionalism in the Caribbean. Bulkan stresses that the need for such norms is most evident where the constitutional texts, in particular the bills of rights, are lacking. Resort to the constitution’s underlying values, such as the separation of powers, the rule of law, democracy, and judicial independence, can clarify contradictory constitutional provisions and resolve difficult cases. Robinson argues that articulating and giving effect to �our inherent constitution’ — implied constitutional norms — could make the constitutions more our own. Her argument is that given the vagaries of the political scene, people will turn to the courts to maintain core fundamental constitutional values. Though implied constitutional norms will generate a measure of uncertainty, she argues that they can help chart progress in the face of �imperfect’ constitutions. Ralph Carnegie dared Caribbean constitutional lawyers to, on occasion, read the texts of their �imperfect’ constitutions lightly and focus more of them on a form of poetry, laden with symbolism and open to different meanings over time.^[87] In his view, rather than the text revealing all, it would be �experience and reasonableness and restraint in its administration [that would determine] its effective working.’^[88]

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