Tag Archives: Caribbean Constitutions

Derek O’Brien – Comment On The Caribbean: Commonwealth Caribbean Elections.

derek-obrien-33When comparing the relative political stability of Britain’s former colonies in the Commonwealth Caribbean with the lack thereof in former British colonies in Africa and Asia and the former colonies of other major powers reference is sometimes made to Huffington’s ‘two-turnover test’(S Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, University of Oklahoma `Press, 1991). That is to say, since independence successive governments across the region have respected the outcomes of elections and have peacefully surrendered power to their successors. Notwithstanding their often ‘rambunctious’ nature, Commonwealth Caribbean elections are thus often held up as a vital sign of the region’s commitment to democracy along Westminster lines (JI Dominguez, ‘The Caribbean Question: Why has Liberal Democracy (Surprisingly) Flourished?’ in JI Dominguez et al (eds), Democracy in the Caribbean (Baltimore, John Hopkins University Press, 1993).

However, this picture of 50 odd years of post-independence political stability, punctuated by carnival-like general elections once every four or five years, does not bear too close scrutiny. The reality is that in the post-independence era Commonwealth Caribbean elections have, sometimes, been violent affairs. In Jamaica, for example, there were 800 murders attributed to political violence at the time of 1980 general elections. In Guyana, in 1997 a dispute about the election results led to a sustained period of post-election violence and rioting. In some countries in the region elections have also been decidedly fraudulent affairs. This is especially true of Guyana during the era of Forbes Burnham, which witnessed a number of ‘rigged’ elections following independence in 1966 (D.O’Brien, Constitutional Law Systems of the Commonwealth Caribbean (Oxford, Hart Publishing, 2014). As the international team of observers led by Lord Avebury noted in its report on the 1980 election:

We came to Guyana aware of the serious doubts expressed about the conduct of previous elections there, but determined to judge these elections on their own merit and hoping that we should be able to say that the result was fair. We deeply regret that, on the contrary, we were obliged to conclude, on the basis of abundant and clear evidence, that the election was rigged massively and flagrantly (Report of the International Team of Observers at the Election of Guyana, Something to Remember (London, Latin American Bureau, 1980).

 Elections in Antigua and Barbuda under the Bird dynasty, during the 1980s and 1990s, were no better. It was widely suspected that the governing party Antigua Labour party (ALP), led by Lester Bird, had used its influence over the Supervisor of Elections to manipulate the electoral process. Evidence of this can be found in the several reports of independent observers of elections during this period, which document some very serious incidents of malpractice. These include: double-voting; the removal of the names of eligible voters from the electoral register; and the inflation of the register by 25 per cent as a result of the inclusion of the names of people who had died or migrated. Most serious of all was the violation of the confidentiality of the voting booth; with electoral officers noting each voter’s registration number on the counterfoil of the ballot paper. This would have had serious ramifications for anyone on the government payroll or otherwise obligated to the ALP (DW Payne, ‘The Failings of Governance in Antigua and Barbuda: The Elections of 1999’ (1999) Policy Papers on the Americas, Vol X, Study 4). Eventually, however, following the recommendation of an independent Commonwealth Observer Group on the conduct of the 1999 elections, the Government was persuaded to establish an Electoral Commission which, along with the Supervisor of Elections, would, henceforth, have responsibility for the conduct of elections.

Notwithstanding the establishment of this Electoral Commission, however, the conduct of elections in Antigua remains a highly contested affair. This is most clearly demonstrated by two recent cases on appeal to the Eastern Caribbean Supreme Court (ECSC), a regional court of appeal for the independent eastern Caribbean islands of Antigua and Barbuda, the Bahamas, Dominica, Grenada, St Kitts and Nevis, St Lucia and St Vincent as well as well as the British Overseas Territories of Anguilla, Montserrat and the British Virgin Islands. In both cases the appellant was Gaston Browne, the leader of the Opposition ALP.

The first case, Browne v AG Antigua and Barbuda, concerned a challenge to the constitutionality of section 5 of the Representation of the People (Amendment) Act 2010 ROP(A)A, which had amended s.16 of the Representation of People Act 1992 by extending the residency qualification for Commonwealth citizens who wished to register to vote, from three to seven years. Section 6 of ROP(A)A had also amended the period within which all persons who were qualified to vote were required to apply for registration as an elector. There were three main strands to the appellant’s challenge.

The first was that the procedure for amending the specially entrenched provisions of the Constitution had not been followed. In the appellant’s submission, by restricting the right of Commonwealth citizens to vote to those who had been resident for seven years ROP(A)A had altered the provisions on voting contained in s.40(3) of the Constitution. In particular, the right of Commonwealth citizens to vote was now being restricted to those who qualified to be citizens of Antigua and Barbuda by virtue of having been resident for seven years. Since s.40 was an entrenched provision it could only be altered, it was argued, by means of a two-thirds majority vote of all the members of the House of Representatives followed by similar two-thirds majority in a referendum. In the Court’s view, however, the right of Commonwealth citizens to vote was dependent on registration in accordance with s.40[2) of the Constitution, which provides that from time to time parliament may by ordinary legislation pass laws prescribing the qualifications relating to residence and domicile for Commonwealth citizens to be eligible to vote. ROP(A)A did not, therefore, involve an amendment to the Constitution per se: it merely changed the eligibility of Commonwealth citizens to register as a voter and the Constitution contemplated that such a change could be effected by ordinary legislation.

The second strand of the appellant’s argument concerned the fundamental nature of the right to vote, which according to the appellant meant that any interference with the right had to satisfy the proportionality test outlined by the Judicial Committee of the Privy Council in deFreitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing. In the court’s view, however, the right to vote was a constituional right and not a fundamental right since it was not included in the list of fundamental rights to be found in Chapter II – an interesting distinction in the light of the current debate about prisoners’ right to vote under the European Convention of Human Rights. The changing of the period of residence for Commonwealth citizens to be registered as electors did not, therefore, attract or engage the requirement of proportionality.

The third strand was concerned with the retrospective effect of the legislation upon two groups of voters. The first group comprised existing Commonwealth citizens who would, henceforth, not be able to vote if they did not satisfy the new residency test. According to the appellant, these Commonwealth citizens, who would have been entitled to vote under the former legislation, would now be required to re-register on pain of de-registration under a new regime of proof and with a more onerous residence qualification. The Court did not, however, accept that this meant the legislation had retrospective effect. Statutory provisions which affect existing rights prospectively, such as the provisions of ROP(A)A were not, in the Court’s view, retroactive . In so far as there was an interference with an existing right – in respect of registration and voting – it was sanctioned by the Constitution. The second group of voters comprised all of those who were required to re-register to vote as a result of ROP(A)A. According to the appellant, their registration as voters under s.19 of the Representation of the People Act 2001 was continuous and since s.19 had not been amended by ROP(A) A the actions of the Electoral Commission in requiring these voters to re-register was ultra vires. In the Court’s view, however, the right to be registered to vote under s.40 of the Constitution did not confer on a person an entitlement to be registered for the purposes of voting ad infinitum or in perpetuity.   Registration to vote was always subject to s.40(3) of the Constitution which empowered parliament to prescribe the qualifications relating to residence or domicile as from time to time. Furthermore, the re-registration process was necessary to ensure that all persons registered to vote were so entitled based on the new residency criteria.

The second and related appeal heard by the ECSC was Browne v Constituencies Boundaries Commission. This case concerned the implementation of certain constituency boundary changes following a report by the Constituencies Boundaries Commission (CBC) published in June 2010. The appellant challenged the boundary changes proposed by the CBC on two main grounds. Firstly, that they amounted to gerrymandering and that the CBC was infected by bias. Secondly, that the period allowed by the CBC for consultation was inadequate, having regard to the Constituencies Boundaries Commission Guidance Act 2012 (the Guidance Act). The appeal was allowed, but solely on the ground that the consultation by the CBC had been inadequate.

Dismissing the first ground of appeal, the Court held that in order to succeed with an allegation of gerrymandering the appellant would have had to show two things: firstly, that the CBC altered the boundaries and that the alterations had the effect of diluting or weakening the ALP’s support in those altered constituencies; and, secondly, that the CBC so altered the boundaries precisely with view to achieving that effect. The appellants had failed to show either.

So far as the charge of bias was concerned the Court noted that the composition of the CBC was governed by s.63 of the Constitution. This provision, which is similar to provisions to be found in several other Caribbean Constitutions, requires the CBC to comprise a Chairman appointed in accordance with the advice of the Prime Minister after the latter has consulted with the Leader of the Opposition, two other members appointed in accordance with advice of the Prime Minister, and one member appointed with the advice of the Leader of the Opposition. This meant that the CBC was essentially composed of party supporters, affiliates and activists, thereby infecting and undermining the impartiality of and public confidence in the CBC. As Singh JA had observed with regard to the composition of the CBC in Dominica in Constituency Boundaries Commission and Another v Baron:

It is my considered opinion that such a commission will always lean more towards political loyalty than constitutional integrity. What would assist in order to avoid the appearance of this mischief of bias is that if, when members are to be recommended to the President [the Governor-General] the respective politicians give names of those who are less politically conspicuous. Life would be so much simpler.

However, in the Court’s view, so long as the composition of the CBC was in accordance with the provisions of the Constitution there would be a ‘presumption of impartiality’. The presumption could only be rebutted by leading cogent evidence. This the appellant had failed to do.

The Court did, nevertheless accept that the CBC’s failure to allow sufficient time for the appellant to respond to its preliminary proposals for boundary changes, coupled with the CBC’s failure to provide the appellant with printed maps depicting the proposed changes, meant that the CBC had failed in its statutory duty to consult pursuant to s.3(2) of the Guidance Act. What this means in practice remains to be seen, but the judgment came too late to implement the boundary changes recommended by the CBC in time for the 2014 elections.

Both of these judgments touch upon a multiplicity of legal issues – the constitutional status of the right to vote, the relationship between the constitutional right to vote and amendments to the registration process, the composition of election management bodies, such as the CBC, and the duty of such bodies to consult – which will be of interest to those concerned with the conduct of elections and electoral reform generally. Arguably, however, their chief interest lies in what the judgments reveal about the intensity of Commonwealth Caribbean politics and the willingness of local politicians to use every weapon at their disposal, including litigation, in pursuit of an electoral advantage. Here, the Leader of the Opposition, Gaston Browne, was convinced that the changes to the residence qualification for Commonwealth citizens and the proposed boundary changes would favour the governing United Progressive Party. What he could not have known at the time that he embarked on this litigation was that, notwithstanding the changes to the residence qualification for Commonwealth citizens, his party would go on to a resounding victory in the 2014 elections, winning 14 out of the 17 seats available.

Though there may be many cultural and social factors that contribute to the intensity of elections in the region a key factor is, undoubtedly, size. Commonwealth Caribbean countries are some of the smallest in the world: Antigua and Barbuda, for example, has 47,000-plus voters, divided into 17 constituencies, making the average number of voters in a constituency just over 2,500. When you combine the winner takes all nature of the ‘first past the post’ system, which is the system of choice for all the countries in the region (with the exception of Guyana which has adopted the party list system), with such small constituency sizes it is inevitable that politicians will wish to fight over every vote. Thankfully, however, on this occasion, at least, the fight was played out in the courts.

 

Derek O’Brien is Reader in Law, Law School, Oxford Brookes University, and Caribbean Correspondent for the UKCLA Blog .

Suggested citation: D. O’Brien, ‘Commonwealth Caribbean Elections’ U.K. Const. L. Blog (29th July 2014) (available at http://ukconstitutionallaw.org).

 

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Se-shauna Wheatle: Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica

seshauna-studio-copy1For more than twenty years Jamaica was engaged in the process of amending the Chapter of Fundamental Rights enshrined in the Constitution of Jamaica 1962. The culmination of that project was the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which ushered in substantial changes in the application of rights (including explicit provision for horizontal rights application) and the scope of rights (for example, designing some of the equality provisions to exclude equal protection on the ground of sexual orientation). As the first case to test the terms of Jamaica’s new constitutional rights arrangements arising under the Charter, Maurice Tomlinson v Television Jamaica Ltd v Others, is of historical import. The case is significant for its assessment of the issues of horizontal rights protection, freedom of expression, and the position of gay persons under the Charter.

Tomlinson, who is a gay Jamaican and was formerly Legal Advisor to Aids-Free World, submitted a proposed Public Service Announcement (PSA) to the two major television stations in Jamaica (Television Jamaican Ltd and CVM Television Ltd). The video message encouraged tolerance towards, and respect for, the human rights of gay men in Jamaica. The stations refused to air the video, whereupon Tomlinson filed a claim in the Supreme Court of Jamaica, a court of first instance in Jamaica which has original jurisdiction in constitutional cases and is of equivalent jurisdiction to the High Court of England and Wales. Tomlinson sought declarations that the stations’ refusal constituted breaches of his right to freedom of expression under section 13(3)(c) of the Charter, and freedom to disseminate information and ideas through the media under section 13(3)(d) of the Charter. He also sought these declarations against the Public Broadcasting Corporation of Jamaica, though it was accepted during argument that as the PBCJ was a statutory body, it was limited by the terms of its statute which barred it from airing paid advertisements. The court unanimously dismissed the claim against all three defendants.

Horizontality Under the New Charter

Some of the most interesting and potentially impactful parts of the judgments delivered by the three judges of the Supreme Court concern the issue of the application of horizontal rights protection under the Charter. The Charter expressly provides for the first time that the rights and freedoms under the Charter are binding on private persons as well as the state to the extent that they are applicable in light of the right and duty under consideration. Thus, section 13(5) states:

A provision of this Charter binds natural or juristic persons, if, and to the extent that, it is applicable taking account of the right and the nature of any duty imposed by the right.

In his judgment Justice Sykes articulates an equality-based view of horizontal rights protection, stating that Jamaica copied the horizontality section in the Final Constitution of South Africa, ‘a country with significant inequality between social groups’ and that that section ‘was, perhaps, seen as a way of addressing that inequality through judicial decision on the scope and meaning of the Bill of Rights’. [191]. Indeed, constitutional scholars Stuart Woolman and Dennis Davis have argued that the inclusion of horizontal application in the South African Constitution gives recognition to the fact that power wielded by private bodies can undermine justice and that ‘inequalities in social power’ undermine the autonomy of individuals. While Justice Sykes identified horizontality as a means of addressing inequality, the Jamaican Supreme Court’s approach to horizontal protection in the Tomlinson case pays little attention to the context of inequality that surrounded the case. Justice Sykes held that the stations did not interfere with the claimant’s right to freedom of expression since the Constitution ‘does not give any private citizen … the right to use another private person’s property to disseminate his message by any technological means available.’ [311] Accordingly, he held that it was not necessary to balance the rights of the rights and responsibilities of the claimants and defendants. Justice Paulette Williams J, on the other hand, balanced the claimant’s rights to freedom of expression and the defendants’ rights to freedom of expression and held that to grant the declarations sought by the claimant would prejudice the rights of the defendants, and that since the claimant has a corresponding duty to uphold the defendants’ rights, the ‘horizontal application … is not applicable’. [98]

The judges did not sufficiently address the special position of the first and second defendants (Television Jamaica Ltd and CVM Television Ltd) as the two major television stations in Jamaica, commanding the vast majority of the market share in televised media, and their resulting dominant position in determining what is televised in Jamaica. The Court also failed to address the context of societal and structural inequalities that confront Jamaican gay men, such as the claimant. These shortcomings in the judgment are all the more striking given the emphasis placed by the members of the court on the section of the South African Constitution from which section 13(5) of the Jamaican Charter draws its influence and much of its language. The corresponding horizontality section of the South African Constitution has been said to embrace a conception of liberalism which recognizes that ‘the real issue regarding the application of fundamental rights is …about how all kinds of power are distributed throughout a polity and what that means for the lives of individuals and the associations that inhabit the larger political community.’ Despite repeated references to the South African provision and the suggestion that it was conceived in an ethos of equality, the Jamaican Court did not take sufficient notice of the context of power distribution that arose in the case before it.

A difficult issue that arises in this area is how courts should approach a conflict between the rights of private citizens. This became central to the Tomlinson case because the defendants, as media companies, also asserted their right to freedom of expression. The approach adopted by Williams J was to balance the claimant’s rights against those of the defendants. The Charter provides some guidance as to how to resolve such a conflict, section 13(2) of the Charter stating that the rights are guaranteed, ‘save only as may be demonstrably justified in a free and democratic society’. This textual guarantee ought to be a guide to determining whether a limitation of rights was justified, irrespective of whether that limitation occurred as a result of an act of the state or an act of a private party. Yet, Williams J appeared to reject the use of this section to resolve conflicting rights as between private parties, referring to the decision of the Constitutional Court of South Africa in Khumalo v Holomisa. In Khumalo the Constitutional Court balanced the media’s right to freedom of expression against the constitutional value of human dignity in determining whether the law of defamation applicable to the private parties in the dispute before the Court was consistent with the Constitution. While referring to the judgment in Khumalo, Williams J failed to note that the Khumalo Court did not actually engage with this question of whether the general limitations clause was applicable in a case of conflicts between rights. Further, the section of the Khumalo judgment that addresses horizontality has been criticised for being ‘cursory’ and there have been more recent judgments from South Africa which shed light on the horizontal application of rights and the conflict between the rights of citizens. These cases were not referred to in Williams J’s judgment. These more recent judgments are particularly interesting because they contain suggestions that the requirements in the limitations clause are relevant to cases of conflict between rights of private parties. Whichever conclusion Williams J arrived at, it would have been useful, in light of the fact that this was the first Jamaican case to raise these issues, for the judge to engage in a more comprehensive analysis of this issue.

Williams J concluded that while balancing the rights of the claimant and the defendant, the court must not tip the balance in favour of one as this would suggest that one party’s right was greater than the other. [94]-[97]. She held that to make the declarations sought against the television stations would prejudice their rights and freedoms, so the claim must be dismissed. She further held that ‘the horizontal application … is not applicable as the claimant has the duty to uphold the corresponding rights of the 1st and 2nd defendants.’ This invites a final observation on Williams J’s decision. While she ostensibly rejects the suggestion that the scale must be tipped in favour of one side, her decision actually does tip the balance in favour of the television stations, while undermining the rights of the claimants. Her denial of this result reflects a mistaken notion that preserving the status quo (that the PSA is not aired) is to refuse to choose, when in fact that preservation of the status quo is a rather demonstrative choice on the part of the court.

This case is of historical import in Jamaica and the Commonwealth Caribbean, and the issues that arose will no doubt be tested when the case is appealed. It is to be hoped that the appellate courts will engage in a more thorough and contextual analysis of some of the contested questions that arise in the field of horizontal rights application.

Se-shauna Wheatle is a Research Associate in Public Law at Durham University.

Suggested citation: S. Wheatle, ‘Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica’ U.K. Const. L. Blog (10 December 2013) (available at http://ukconstitutionallaw.org).

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Derek O’Brien: CARICOM: ‘a new legal order’?

derek-obrien-33The recent case of Myrie v Barbados, in which the Caribbean Court of Justice (CCJ) held that the actions of the Barbados immigration authorities in refusing entry to a Jamaican national violated the automatic right of entry granted to all CARICOM nationals pursuant to a Decision of the Conference of Heads of Government of CARICOM Member States in 2007 (the 2007 Decision) is likely to be of huge practical relevance in terms of promoting the right of free movement between Member States for all CARICOM nationals. The case is also, however, of considerable constitutional significance for the Member States of CARICOM and it is its constitutional impact which I wish to focus on in this blog.

Background

The Caribbean Community and Common Market (commonly known as CARICOM) was established in 1973 by the Treaty of Chaguramas (ToC) with broadly the same aims and objectives as the European Economic Community, upon which it was broadly modelled. Curiously, however, for a common market there was no provision for the free movement of workers. In fact, the principle of free movement was expressly disavowed by Article 38 of the ToC, which provided that:

Nothing in this Treaty shall be construed as requiring or imposing any obligation on a Member State to grant freedom of movement to persons into its territory whether or not such persons are nationals of other member states of the common market.

Following two decades of economic stagnation, however, it was agreed by the Heads of Government in the early 1990s that CARICOM should move to the next level of integration by establishing a Caribbean Single Market and Economy (CSME), which would, among other things, make provision for ‘hassle free travel’ (allowing CARICOM nationals to travel between Member States without the need for a passport); free movement between Member States for certain categories of skilled CARICOM nationals; and the right of CARICOM nationals to establish a business and to provide services in another Member State. All of these rights (with the exception of ‘hassle free travel’) were embodied in Chapter III of the Revised Treaty of Chaguaramas (RTC), which also committed Member States to the ultimate goal of permitting free movement between Member States for all CARICOM nationals (Article 45 RTC).  One year after the ratification of the RTC, the 2007 Decision to permit all CARICOM nationals a right of entry and an automatic six month stay marked another significant milestone in the journey along the path towards free movement for all; with only Antigua and Barbuda entering a reservation in respect of the Decision. The 2007 Decision was also of considerable symbolic importance because for the first time the link between the right to free movement and economic activity was expressly severed.

Implementation of this last mentioned right has however proved to be particularly problematic. An Appraisal Report  prepared by the CARICOM Secretariat in 2009, for example, noted that, Guyana apart, none of the Member States had amended their immigration laws to give effect to a right of entry and an automatic six month stay for all CARICOM nationals. Instead, the Appraisal Report notes that the right of entry was being dealt with administratively at the port of entry and this had led to a great deal of dissatisfaction throughout the region. This has been confirmed by Tillman Thomas, the Prime Minister of Grenada, who has observed that the failure consistently to apply the automatic right to a six months stay across the region has led to ‘confusion and perceptions of discriminatory treatment amongst Community nationals.’ In his view there had been a fundamental lack of clarity about the degree of administrative discretion exercised by immigration officials; the grounds upon which automatic entry could be legally and reasonably denied; the right of Community nationals to be treated in a dignified and human manner; and the legal rights of Community nationals in cases of alleged unfair and inappropriate treatment. Ralph Gonsalves, the Prime Minister of St Vincent has also noted that his office regularly receives ‘heart rending stories of Vincentian nationals who have been subjected to unfair, unlawful, unconscionable, and discriminatory treatment by some immigration authorities within member states of CARICOM. These claims are more than borne out by the facts of Myrie v Barbados in which the claimant, a Jamaican national, had not only been refused entry by immigration officials upon her arrival in Barbados, but had also been subjected to insults based upon her nationality and to an unlawful body cavity search in demeaning and unsanitary conditions. Though the claimant also alleged that her fundamental rights and freedoms had been violated and that her treatment had been in violation of the right to non-discrimination on the grounds of nationality, which is guaranteed by Article 7 RTC, the central plank of her case rested upon her right to enter Barbados and to be granted an automatic six month stay pursuant to the 2007 Decision.

The case raised two questions of considerable constitutional importance for the legal orders of the Member States of CARICOM. Firstly, whether Decisions of the Conference of Heads of Government were enforceable by the nationals of Member States? Secondly, what should happen where national laws were incompatible with either the RTC or with the secondary ‘legislation’ emanating from the competent organs of CARICOM (Community law)?

Enforceability of the 2007 Decision?

By Article 240 (1) RTC:

Decisions of competent organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States.

The Government of Barbados, accordingly, sought to argue that a Decision of the Conference could not give rise to rights and obligations enforceable against Member States by the nationals of Member States unless and until the Decision had been incorporated into the municipal law of the Member State.

In the CCJ’s view, however, this argument was mistaken because it was based on the orthodox dualist approach to international law, which requires the provisions of an international treaty to be incorporated into the domestic law of a State before the treaty can be enforced under the national law of that State. Here, however, the question was not whether the Decision was enforceable at the domestic level, but rather whether it was enforceable at the Community level. In the Court’s view, Article 240 RTC was concerned exclusively with the creation of rights and obligations at the domestic level and their enforceability in domestic law. To accept the submissions of the Government of Barbados on this issue would, in the CCJ’s view, be a retrograde step; it would mean, effectively, that the Member States had not  progressed beyond the voluntary system that had been in force prior to the CSME.  It would also prejudice the attainment of the aims and objectives of the CSME if binding regional Decisions could be invalidated at the Community level by the failure on the part of a particular State to incorporate those Decisions locally. If domestic incorporation were a condition precedent to the creation of Community rights, an anomalous situation could be created in which some Member States had incorporated the Decision and others had not. In the Courts view: ‘This would be untenable as it would destroy the uniformity, certainty and predictability of Community law.’

The relationship between ‘Community law’ and national law?

As the CCJ acknowledged, the grant of an automatic right of entry and a six month stay granted by Community law was wholly inconsistent with the immigration laws of Barbados. In the Court’s view, however, this inconsistency was of no consequence because:

The original jurisdiction of the Court has been established to ensure observance by the Member States of obligations voluntarily undertaken by them at the Community level. The Court is therefore entitled, if not required, to adjudicate complaints of alleged breaches of Community law even where Community law is inconsistent with domestic law (emphasis added). It is the obligation of each State, having consented to the creation of a Community obligation, to ensure that its domestic law, at least in its application, reflects and supports Community law.

The logic of regional integration between a Community of states necessarily entailed, in the Court’s view, the creation of ‘a new legal order’ which required the Member States to accept certain limits, albeit relatively modest , in particular areas of national sovereignty. Henceforth:

Community law and the limits it imposes on the Member States must take precedence over national legislation, in any event at Community level (emphasis added).

Conclusion

CARICOM has since its inception been afflicted with what the West Indian Commission, in its report Time for Action (Black Rock, Christchurch, Barbados: 1992), called an  ‘implementation gap’. This was a reference to the persistent failure of Member States to implement at the national level Decisions taken at the regional level. It might, therefore, be argued that in recognising Decisions of the Conference as a source of Community law that nationals can enforce against the Member States the CCJ has made significant progress in addressing this ‘implementation gap’. A comparison might even be made with the groundbreaking work carried out by the ECJ to combat the ‘Euro-sclerosis’ (Paul Craig and Grainne de Burca, (5th ed) EU Law: Text, Cases and Materials (Oxford University Press: 2011) 144) that afflicted the European Community during the 1970s, by introducing a normative supranationalism through the development of the doctrines of ‘direct effect’ (Van Gend en Loos) and the ‘supremacy’ of Community law (Costa v ENEL).

The comparison, would, however, be misleading, for while the judges of the CCJ may have insisted in the Myrie case upon the ‘supremacy’ of Community law they have on other occasions steadfastly refused to acknowledge its ‘direct effect’. Thus, according to Justice Hayton, speaking extra-curially:

Unlike the position in Europe the direct effect of the [RTC] in conferring rights on Community nationals does not result in Community rights being invoked or enforced in national courts…National courts have no jurisdiction (emphasis added).

As a result the relationship between national courts and the CCJ is entirely different to that which exists between the national courts of Member States and the ECJ.  In the case of the latter, following the development of the doctrines of ‘direct effect’ and ‘supremacy’ national courts came to be regarded as the ‘guardians of the Community’; able to hold the governments of their respective Members State to account for violations of Community law and to give effect to the rights granted to the citizens of Member States by and under European Community (now European Union) law.

The legal order envisaged by the CCJ in the Myrie case is, however, of a quite different kind. While Community law may trump national law at the Community level and while the nationals of Member States may be able to hold to account the governments of their own and other Member States for violations of Community law in proceedings before the CCJ, Community law and national law remain two entirely separate systems and national courts have no jurisdiction to interpret or apply the former.  What the CCJ appears to have achieved in Myrie v Barbados is thus to establish the supremacy of Community law. What it has not done, however, is to establish a  ‘Community of law’ (to paraphrase Martin Loughlin The British Constitution: A Very Short Introduction (Oxford University Press: 2013) 79). As a consequence, though the judgment in Myrie v Barbados is undoubtedly constitutionally significant, it is unlikely to have the same transformative effect upon the political and legal landscapes of CARICOM and its Member States as the groundbreaking judgments of the ECJ in the Van Gend en Loos and Costa v ENEL cases had upon the Member States of the then European Community.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘CARICOM: ‘a new legal order’?’  U.K. Const. L. Blog (8th November 2013) (available at http://ukconstitutionallaw.org).

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Derek O’Brien: The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean

derek-obrien-33The basic structure doctrine, as first expounded by the Indian Supreme Court in the early 1970s in Kesavanand Bharati v Kerala (A.I.R. 1973 SC 1461), asserts that the law-making powers of a legislature are not unlimited in as much as they do not extend to altering the ‘basic structure’ of the constitution. Some 40 years later the same doctrine has been invoked in two cases by the Supreme Court of Belize to strike down amendments to the Constitution of Belize. In both cases the legislation amending the Constitution had secured the special majority in the House of Representatives required by the Constitution, but was nevertheless struck down by the Supreme Court on the grounds that the legislation violated the basic structure of the Belize Constitution. The cases are of interest not only because they are the first, and so far the only, examples of the basic structure doctrine being invoked by a Commonwealth Caribbean court, but also because they offer a valuable insight into how a dispute between the courts and the executive with regard to the implied limits on a legislature’s law-making powers might play out.

In the first case, Bowen v Attorney General BZ 2009 SC 2, a group of landowners sought to challenge the constitutionality of the Belize Constitution (Sixth Amendment) Bill 2008 (the Sixth Amendment). This was intended to enable the Government to exploit the recent discovery of oil in the country. Clause 2 of the Sixth Amendment thus sought to disapply the protection afforded by s. 17(1) of the Constitution to the owners of :

‘petroleum minerals and accompanying substances, in whatever physical state located on or under the territory of Belize…the entire property and control over which are exclusively vested, and shall be deemed always to have been so vested, in the Government of Belize.’

The purported effect of the legislation would thus have been to deny to the owners of any such interests in land the right to apply to the courts for compensation in the event of being arbitrarily deprived of such interests by the State.

Lawyers for the Attorney General argued that since the Sixth Amendment had been approved by the special three quarters majority required by s.69 of the Constitution there could be no challenge to its constitutionality. Chief Justice Conteh, however, disagreed. In his view the law-making powers of the Belizean Parliament are not unlimited in as much as the Belizean Parliament cannot ‘legitimately’ make laws that are contrary to the ‘basic structure’ of the Constitution itself. In the Chief Justice’s view, the basic structure comprised not only the fundamental rights guaranteed by Chapter II of the Constitution, but also the principles, ideas, beliefs and desires of the people of Belize as enshrined in the Preamble of the Constitution, which include, among other things, respect for the rule of law and the right of the individual to the ownership of private property. The Chief Justice also had regard to the principle of the separation of powers, which had previously been recognised by the Judicial Committee of the Privy Council (JCPC) into be a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence (Hinds v The Queen [1977] AC 195) . This principle would be violated if the citizens of Belize were to be denied access to the courts for compensation for the arbitrary derivation of their property by the State.

But what about the approval of the legislation by a special majority of the National Assembly? Was this to count for nothing? In the Chief Justice’s view, s.69 was a mere ‘manner and form’ requirement, no more than a ‘procedural handbook’[101], and was certainly not determinative of the constitutionality of legislation enacted by Parliament. Quite apart from the formal procedures laid down by s.69, any prospective amendment of the Constitution had to conform to the Constitution’s normative requirements as captured by section 68, which provides that all laws enacted by Parliament must be ‘subject to the Constitution’[105] – [107]. Any other view would entail subordinating the supremacy of the constitution in favour of parliamentary supremacy, for once the required majority for an amendment is obtained then absolutely no constitutional provision would be beyond alteration or revocation [120].

Following the judgment in Bowen, the Government amended clause 2 of the Sixth Amendment to provide that nothing in the amended s. 17 would affect the rights of the owner of any private land beneath which any petroleum deposits are located to receive royalties from the Government (For an account of the fall out from the ‘Bowen’ litigation see Prime Minister Belize v Vellos [2010] UKPC 7).  As we shall see, however, this did not mean that the Government was prepared to accept the limitations placed on the Belizean Parliament’s law-making powers by the Supreme Court in Bowen.

In the second case, British Caribbean Bank Ltd v AG Belize Claim No. 597 of 2011, the applicant had originally challenged the constitutionality of the Belize Telecommunications (Amendment) Act 2009 (TCA 2009), the purpose of which had been to enable the Government compulsorily to acquire the properties, rights and interests held by the applicants in Belize Telemedia Ltd, a major provider of telecommunications services in Belize. Though the challenge to the constitutionality of the legislation had been dismissed at first instance it had been upheld by the Court of Appeal on the grounds, inter alia, that the TCA 2009 was contrary to the right to property under s.17(1) of the Constitution in so far as it did not prescribe the principles on which reasonable compensation was to be paid for the acquisition of the applicant’s property within a reasonable time.

In response to the Court of Appeal’s judgment the Government secured the enactment of the Belize Telecommunications (Amendment) Act 2011 (TCA 2011), which sought to address some of the problems with the TCA 2009 that had been identified by the Court of Appeal.  At the same time, and in order to put the renationalisation of the telecommunications industry beyond doubt, the Government also secured the enactment of the Belize Constitution (Eighth) Amendment Act 2011 (the Eighth Amendment). The Eighth Amendment not only sought to disapply the ‘supreme law’ clause of the Constitution to ‘a law to alter any of the provisions of this Constitution which is passed by the National Assembly in conformity with s.69 of the Constitution,’ but also expressly declared that ‘the provisions of [s.69] are all-inclusive and exhaustive and there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution.’ As the Prime Minister frankly admitted, this was in direct response to the judgment of the Supreme Court in Bowen (See A Fiadjoe, ‘Legal Opinion on the Ninth Amendment Bill of Belize)Additionally, the Eighth Amendment added a new Part XIII to the Constitution, the effect of which was, firstly, to define the meaning of ‘public utilities;’ secondly, to vest majority ownership and control of all public utility providers in the Government; and, thirdly, by s.145(1) and (2), to declare that the Government’s acquisition of such public utilities was duly carried out for a public purpose.

A challenge to the constitutionality of the Eight Amendment was, however, upheld by the Supreme Court, which concurred with the judgment of Chief Justice Conteh in Bowen in concluding that the National Assembly is not legally authorised to make any amendment to the Constitution that would remove or destroy any of the basic structure of the Constitution of Belize [45]. Since the cumulative effect of the Eighth Amendment was to preclude the Court from determining whether the arbitrary deprivation of property by the Government was for a public purpose, the Eighth Amendment offended the principle of the separation of powers and the basic structure doctrine of the Constitution. To this extent the amendments to the Constitution were unlawful, null and void.

Though the basic structure doctrine has now been prayed in aid by the Belize Supreme Court on two occasions, it has not yet been endorsed by any higher court in the region; an appeal to the Caribbean Court of Justice against the Court of Appeal’s refusal to award consequential relief to the applicants following its original judgment in British Caribbean Bank Ltd v Belize having been stayed pending the challenge to the TCA 2011. It is, as a consequence, difficult to predict whether the basic structure doctrine is likely to be taken up by other courts in the region. Potentially, at least, it is a very interesting jurisprudential development in a region where governments seem to be increasingly willing to amend their country’s constitution with a view to depriving their courts of the right to review the constitutionality of actions of the executive when implementing the death penalty even if they violate the right not to be subject to torture or inhuman or degrading treatment or punishment and to preserve legislation which criminalises homosexuality (See, for example, Jamaican Charter of Fundamental Rights and Freedoms).

However, the basic structure doctrine represents a significant departure from over a century’s worth of jurisprudence on the powers of legislatures, like those of the Commonwealth Caribbean, which are empowered by their constitution: to ‘make laws for the peace, order and good government ’ of their country. The plenary nature of the power thus granted was recognized by the JCPC in a series of historic decisions at the close of the nineteenth century, such as Riel v The Queen (1885) 10 AppCas 675, in which Lord Halsbury rejected the contention that a statute was invalid if a court concluded that it was not calculated as a matter of fact and policy to secure ‘peace, order and good government.’ The basic structure doctrine is also very difficult to reconcile with the following dicta of Lord Diplock in Hinds:

Where…a constitution on the Westminster model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the Constitution provides machinery whereby any its provisions, whether relating to fundamental rights and freedoms, or to the stratum of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in the Parliament acting by specific majorities, which is generally all that is required (at 214).

Judicial attitudes towards constitutional review of legislation have, however, changed dramatically since Lord Diplock’s judgment in Hinds. In addition to the further development of the basic structure doctrine by the Indian Supreme Court, the South African Constitutional Court has asserted its power to review the content of constitutional amendments if they violated certain implied limits, (Premier of Kwazuly Natal v President of South Africa CCT 36/95) and the High Court of Australia has recognized that its Parliament’s law-making powers are subject to limitations which may be implied ‘in and from the text of the Constitution’(Nationwide News Pty Ltd v Willis (1992) 108 ALR 681 at 701-722). Even in Britain, in the absence of a codified constitution, a theory of common law constitutionalism has emerged, which is reflected in the dicta of a number of their Lordships in the case of Jackson v Attorney General [2005] UKHL 56 to the effect that the British Parliament, which has traditionally been regarded as legislatively supreme, may be subject to certain implied constitutional limits. As Lord Steyn remarked:

In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish [102].

It is, of course, one thing to pronounce hypothetically on the possibility of striking down legislation which infringes an implied constitutional limit: it is quite another to do as the Supreme Court of Belize has done and to strike down legislation to amend the constitution which has the support of no less than three quarters of the National Assembly. The challenge to representative democracy by the Supreme Court in these two cases could not be clearer. It is worthwhile noting, however, that, notwithstanding the radical nature of the Supreme Court’s decision in both cases the Government has not sought to appeal against either judgment and may be assumed, therefore, to have accepted ultimately that there are, indeed, some implied limits on the legislature’s power to amend the Constitution, irrespective of the support for the legislation that the Government may have been able to garner in Parliament.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean’  UK Const. L. Blog (28th May 2013) (available at http://ukconstitutionallaw.org).

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Derek O’Brien and Se-shauna Wheatle: The Commonwealth Caribbean and the Uses and Abuses of Comparative Constitutional Law

The practice of judges engaging in a transnational judicial conversation about constitutional rights, by referring to the judgments of international human rights courts and other constitutional courts when interpreting their own domestic Bills of Rights, has been commented upon in detail by comparative constitutional law scholars, such as Christopher McCrudden and Anne-Marie Slaughter[1]. It still remains, however, a highly contested practice. Supporters of this practice, such as Vicki Jackson, argue that such transnational judicial conversations enhance understandings of core concepts, such as equality and human dignity, while critics, such as Justice Antonin Scalia, complain that they aid result-oriented reasoning as judges use comparative law selectively depending upon the result that the court wishes to reach. The scope for judges in the Commonwealth Caribbean, (which term includes the judges of the Judicial Committee of the Privy Council (JCPC), and the judges of the Caribbean Court of Justice in the case of those countries that have ratified its appellate jurisdiction – Guyana, Barbados and Belize) to engage in a transnational judicial conversation when interpreting their own domestic Bill of Rights has, however, been severely restricted by the inclusion in their Independence Constitutions of general and partial savings law clauses.

General savings law clauses (which are to be found in the Constitutions of Jamaica, Trinidad and Tobago, Barbados, The Bahamas and Guyana) afford immunity from constitutional challenge to all laws that were in force at the time of Independence. It has thus been, effectively, pointless for judges in these  Commonwealth Caribbean states to invoke jurisprudential developments in international human rights law (such as Dudgeon v UK (1982) 4 EHRR 149 and Tyrer v UK (1978) 2 EHRR 1)  and other national courts (such as Lawrence v Texas 123 S. Ct. 2472 (2003))  when determining the constitutionality of pre-independence laws; including laws that provide for the death penalty for murder, judicial flogging or the criminalisation of sexual relations between men. Notwithstanding changing judicial attitudes toward such laws elsewhere, the JCPC confirmed in Boyce v The Queen [2004] UKPC 32; [2004] 3 W.L.R. 786 that when interpreting the Constitutions of the Commonwealth Caribbean judges were bound by the inclusion of general savings law clauses and could not rely on judicial developments elsewhere when determining the constitutionality of pre-independence laws.

Partial savings law clauses (which are to be found in the Constitutions of Antigua and Barbuda, Barbados, The Bahamas, Belize, Jamaica, Guyana, St. Lucia) preserve all forms of punishment that were authorised as lawful prior to independence. These clauses have been tested most frequently in cases concerning the constitutionality of the death penalty. Originally, it was thought that these clauses precluded any possible challenge to the constitutionality of the death penalty on the ground, for example, that it violated the guarantee against torture and inhuman and degrading treatment or punishment. However, in a series of judgments, beginning with its landmark decision in Pratt and Morgan v. AG (Jamaica) [1994] 2 A.C. 1 the JCPC found a way of circumventing these partial saving law clauses by insisting that their effect is confined to authorising descriptions of punishment for which the court may pass sentence.  Accordingly, they do not prevent an applicant from arguing that the circumstances in which the executive intend to carry out the sentence, including, in that case, prolonged delay, may violate the right not to be subject to inhuman or degrading treatment or punishment. In Lewis v AG Jamaica [2000] 3W.L.R. 1785 the JCPC added that in extreme circumstances account might also be taken of the conditions under which a condemned prisoner was being held in determining whether the execution of the death sentence would violate the guarantee against torture and inhuman and degrading treatment or punishment. And finally, in Queen v Hughes [2002] 2 A.C. 259, the JCPC held that a pre-independence law, which prescribed a mandatory death penalty for the offence of murder, was not saved by the partial saving laws clause in the Constitution of St Lucia on the ground that the clause only saved existing laws to the extent that such laws authorise the infliction of the death penalty: they could not save an existing law which prescribed a mandatory death penalty, since this requires the infliction of the death penalty.

In each of these cases the JCPC supported its decisions by reference to the growing body of comparative and international jurisprudence condemning, for example, delay in the carrying out the death penalty (including judgments of the Supreme Courts of Zimbabwe and India as well as the judgment of the ECtHR in Soering v UK (1989) 11 E.H.R.R. 439)andthe imposition of a mandatory death penalty for murder, which had been held to be arbitrary and inhuman by both the United State Supreme Court (Woodson v State of North Carolina 428 U.S. 280 (1976) and the Supreme Court of India (Mithu v State of Punjab [1983] 2 S.C.R. 690). These developments were, however, viewed with the utmost dismay by Commonwealth Caribbean governments and a number have, accordingly, responded by seeking to further immunise the operation of the death penalty and to prevent constitutional challenges based on judicial developments in other jurisdictions, including the above.

The first Government to act was Barbados, which, in 2002, amended its Constitution to ensure that prisoners who had been sentenced to a mandatory death penalty, who had suffered delay in the carrying out of their execution, or who were held in inhuman or degrading prison conditions, would not be able to mount a constitutional challenge on the grounds that their right not be subject to torture or inhuman or degrading treatment or punishment had been violated.[2] In 2011, the Government of Trinidad sought and narrowly failed to secure an amendment to its Constitution (Trinidad Constitution (Amendment) (Capital Offences) Bill 2011) which would have gone even further than this by additionally precluding a constitutional challenge on the ground that the warrant for the execution of the sentence of death had been read to the condemned man on more than one occasion.

Most recently, the Jamaican Government has amended its Bill of Rights by replacing it in its entirety with a new Charter of Rights and Freedoms. While the Charter seeks to expand rights protection in certain areas, it also seeks to prevent its judges from entertaining constitutional challenges to laws that authorise the death penalty for capital crimes, that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. With respect to the death penalty, the Joint Select Committee (JSC) which had been appointed by the Government to approve the terms of the draft Charter explicitly acknowledged the developments in other jurisdictions, such as South Africa (State v Makwanyane 1995 (6)BCLR 665 (CC)) and Tanzania (Mbushu v Republic (1995) 1 LRC 216), where their judges had been allowed to engage in an extensive discourse about the constitutionality of the death penalty, but recommended the retention of the partial savings law clause in the new Charter to ensure that this question remained outwith the jurisdiction of Jamaican judges and the judges of the JCPC, which continues to be Jamaica’s final court of appeal. The Charter also expressly precludes constitutional challenges based on delay in carrying out the death sentence or the physical conditions or arrangements under which the condemned person is detained.

As noted above, the Charter is not only concerned with the operation of the death penalty. It also seeks  to preclude the possibility of jurisprudential developments elsewhere resulting in a challenge to the constitutionality of laws that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. This concern is particularly relevant in light of growing international pressure repeal to anti-sodomy laws. This pressure recently appeared in the form of a report of the Commonwealth Eminent Persons group, which recommended the repeal of anti-sodomy laws in the 41 Commonwealth countries where such laws remain on the statute books. While the Jamaican Government could not have been aware of the report, since the Charter was drafted long before the publication of the report, it is clear that the Government was aware of the possibility that the Charter might conceivably be used as a ground for challenging the constitutionality of such laws. Indeed, the prescience of the Jamaican Government is amply demonstrated by the recent announcement of the Human Dignity Trust (HDT) that it plans to intervene to support a constitutional challenge to the anti-sodomy law in Belize initiated by a Belizean gay rights activist. (see a report in The Guardian). In order to foreclose the possibility of such a challenge being mounted in Jamaica the Charter includes a general saving laws clause which provides that nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter, relating to, inter alia, sexual offences, shall be held to be inconsistent with or in contravention of the provisions of the Charter. Thus, on the basis that it was in force before the commencement of the Charter, section 76 of the Offences Against the Person Act which criminalises sexual activity between men appears to be immune from constitutional challenge.

Concerned also that, in the alternative, the guarantee of equality contained in section 13 (2) (i) of the Charter might provide a ground for mounting a constitutional challenge to other laws, including post-Charter laws, that discriminate on the basis of sexual orientation, the JSC expressly rejected a proposal to include the term ‘sex’ as a prohibited ground of discrimination, for fear that it might be interpreted to include sexual orientation. . Thus, the Charter instead opts for the much clumsier term, ‘being male or female.’ Finally, and for good measure, the Jamaican Government has sought to repel the potential influence of judicial developments with regard to same-sex marriage elsewhere. For example, in, Goodridge v Mass. Dept. of Health 798 N.E. 2d 941, in which the Massachusetts Supreme court legalized same sex-marriages within that state, Halpern v Ontario 65 O.R. (3d) 161, in which the Court of Appeal of Ontario held that the opposite-sex requirement for marriage in that state was unconstitutional, and Minister of Home Affairs v Fourie (2006)  (3) BCLR 355 (CC), in which the Constitutional Court of South Africa held that the exclusion of same-sex couples from the common law definition of marriage was unconstitutional. Accordingly, section 18 of the Charter provides that no law which restricts marriage as limited to one man and to one woman shall be held to be inconsistent with the Charter.

Conclusion

To paraphrase Joseph Jaconneli, the effect of the saving laws clauses of the Independence Constitutions of the Commonwealth Caribbean was to ‘crystallise’ their Bills of Rights. This may originally have been justified on the ground that in the immediate post-independence period the saving laws clauses guaranteed legal stability by ensuring that existing laws were not subject to constitutional challenge. It is, however, now nearly half a century since the first countries in the region gained independence and the retention of these saving laws clauses can no longer be justified by reference to the need for stability. Instead, it is clear from the examples of Barbados, Trinidad and Jamaica, that Commonwealth Caribbean governments are all too aware of the developments that have been taking place in international human rights law and in constitutional courts around the world, but do not want their judges to be able to rely on these developments when interpreting their own Bills of Rights.  In the case of Jamaica, which is the only country to date to undertake a wholesale review of its Bill of Rights, the Government has seized the opportunity, not for the purpose of removing the offending savings laws clauses, but instead to further insulate existing laws relating to the operation of the death penalty and sexual orientation by placing them beyond judicial scrutiny and thus beyond the reach of comparative constitutional law.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.
Se-shauna Wheatle is a DPhil Candidate at Balliol College, and Lecturer in Law, Exeter College, University of Oxford.
 

[1]             Christopher McCrudden, ‘A Common Law of Human Rights: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499; Anne-Marie Slaughter, ‘Judicial Globalization’ (2000) 40 Va. J. Int’l L. 1103.

[2] Constitution (Amendment) Act 2002

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