Public Law

CONSTITUTIONAL LAW
Constitutional vs. Parliamentary Sovereignty

CONSTITUTIONAL & HISTORICAL BACKGROUND

The principles of constitutional law set out the relationship between the
different organs of state as well as the relationship between the state and its
citizens. The constitution may be written or unwritten or it may be contained
in a single document or derived from a number of sources (UK).
A constitution (written) may be a primary document or may be a schedule to
another one (Jamaica).

Structure
It is divided into chapters or parts and one separately dealing with the
powers and functions of the three arms of the state.
There is also a chapter that deals exclusively with the fundamental rights
and freedoms; commonly called the Bill of Rights.

Process
1.
2.
3.
4.
5.

Local Drafting
Local Debates on the Draft
Discussion and negotiation in England at Constitutional Convention
Ratification by Local Legislature
UK Act of Parliament

However, one criticism is that Caribbean constitutions were imposed and

there is a lack of autochthony (wasnt home grown).
Trinidad and Tobago as well as Guyana abandoned the Independence
Constitution.

How Original Are Independence Constitutions?

They lack originality.

Norman Manley suggests that approximately 90% of constitution is the same

as existed as before independence.

Hinds v The Queen [1976] 1 All ER 353:

Lord Diplock said: the people for whom new constitutions were being
provided were already living under a system of public law in which the local
institutions through which government was carried on, the legislature, the
executive and the courts, reflected the same basic concept. The new
constitutions, particularly in the cases of unitary states, were evolutionary
not revolutionary. They provided for continuity in government through
successor institutions, legislative executive and judicial, of which the
members were to be selected in a different way, but each institution was to
exercise powers which, although enlarged, remained of a similar character to
those that had been exercised by the corresponding institution that it had
replaced.
Westminster Model/Style (Export Model) Constitution
The Westminster Model is characterized the following:
i.
ii.
iii.
iv.
v.
vi.

Head of State Her Majesty Queen Elizabeth II, represented by the

Governor General. In Trinidad the Head of State is the President and
performs the same role as Her Majesty.
Separation of Head of State and the Head of Government (there is a
fusion of both offices in the U.S and Guyana).
Cabinet Government the Prime Minister chooses cabinet members
from Parliament and cabinet members are collectively responsible to
Parliament. Together they compose the Executive.
The Prime Minister must come from the lower/elected house.
The Westminster Model has a bicameral legislature (Senate and the
House of Representatives).
There is a similar voting system first past the post compared to
proportional representation (70% of votes = 70% of seats).

The Westminster Model connotes a separation of powers, but in practice this

is mostly demonstrated by the independence of the judiciary.

Difference between Caribbean and U.K Constitution

1. Single source vs. several sources
2. Supremacy of Constitution vs. Parliamentary Supremacy
3. Fundamental rights and freedoms are entrenched a simple majority in
parliament cant change them.
Application Relevance of the term Westminster Model

Adegbenro v Akintola [1963] 3 WLR 63

To paraphrase Viscount Radcliff the Nigerian constitution must be
interpreted according to the wording of its own limitations and not to
limitations which that wording does not import, and while it may be useful to
draw on British practice in interpreting a phrase; it is the wording of the
constitution that is to be interpreted and applied.
It is not enough to say it is Westminster Style; you have to look at language
and particular style.

Structure

Some constitutions have a preamble. That is, a recital of the goals and
aspirations of the people (Jamaica dont). However, it is not generally
an enforceable part of the constitution.
The Supreme Law Clause the constitution proclaims its supremacy
over all other law.
Some constitutions expressly use the word
supreme law. It declares all other laws that are inconsistent with the
constitution to be null and void (s. 2).
There is a chapter that protects fundamental rights and freedoms:
a) The individual rights are subjected to public interest and public safety

b) They provide for redress in the Supreme/High Court where there has
been a breach of those rights such as freedom of expression,
assembly, right to a fair trial
c) Savings Law Clauses it saves laws that existed prior to the
constitution even if it is inconsistent with it.
Machinery for change the constitution is supreme. The constitution
itself sets out the process by which its provisions can be changed.
There are different levels of entrenchment of the provisions in the
constitution.
In order to change the constitution, different parliamentary majorities are
required.
Minimum requirement majority of the members of parliament of those
present as long as they form a quorum (maximum of twenty people).
Simple majority of the particular House (Senate, House of Representatives)
Absolute Majority (both Houses)
2/3 majority

Method
The constitution cannot be changed by implication. It must be changed by
express amendment such as a declaration of intent.
There must be a delaying period.
Some provisions require a referendum (difficulty partisan politics)
Difficulty in changing interlocutory impacts on another section of the
constitution, thus the change affects another section.

SUPREMACY OF THE CONSTITUTION AND JUDICIAL REVIEW

Parliamentary Supremacy

Dicey the principal of parliamentary sovereignty means that parliament has

the right to make or unmake any law whatever and that no person or body is
recognized by the law as having a right to override or set aside the
legislation of parliament.
In practice, what it means is that parliament has control over its internal
proceedings and that the courts will not review this process to see if
parliament conform to the manner and form requirements for making laws.

Thompson in his work Textbook on Constitutional and Administrative

Law, explains the doctrine thus: Thesupremacy of Parliament is a legal
doctrine which refers to the relationship between the courts and Acts of
Parliament. The nature of this relationship is that the courts must give effect
to Acts of Parliament. They may not deny them legal effect, as can happen in
the Commonwealth Caribbean, where incompatibility with the constitution is
a basis on which the courts may strike down legislation.
Edinburgh and Dalkie Railway (1842):
In said case a point was made about a private Act that was passed by
Parliament. It affected a vested right. It was contended that it could not be
made applicable to a person who had been given no notice of the
introduction of the Bill. Per Lord Campbell paraphrasing him said that if it
appears that a bill has passed both houses and received the royal assent, no
court could inquire into the mode in which it was introduced into parliament,
nor into the action taken before its introduction, or what happened in
parliament during its progress in its various stages through both houses.

The second aspect of parliamentary sovereignty means that the courts will
not review acts of parliament they will only interpret them. What they can
do is to make what is known as a Declaration of Incompatibility, for
instance, with international law. When they make this declaration, although
parliament is not bound by it, in practice, parliament will take steps to be
compatible with whatever area its policies are in conflict with.
In the United Kingdom the doctrine of Parliamentary Supremacy renders the
courts powerless to question the legality and constitutionality of primary
legislation. This remains the position today, despite the acknowledgement by
modern text writers that one of the impacts of Britains participation in the
European Union is that Parliamentary supremacy may no longer be regarded
as the cornerstone of British constitutional law.
Lord Nolan pointed out the fact that as a matter of law Parliaments
ultimate sovereignty remains intact, but that, its influence has diminished
over the years and external developments, which it is unable to control, are
tending to diminish the influence further.
The third one is that parliament is not bound by its predecessors.
parliament does today would not bind it in the future.

What

Blackburn 500 v. The A.G [1971] 2 All ER 286:

The plaintiff brought two actions against the Attorney General claiming
declarations to the effect that, by signing the Treaty of Rome, Her majestys
Government would irreversibly partly surrender the sovereignty of the Crown
in Parliament and in doing so, would be acting in breach of the law. Eveleigh
J. upheld the order of the master striking out the statements of claiming as
disclosing no reasonable causes of action.
On appeal by the plaintiff: - Denning M.R We have all been brought up
to believe that, in legal theory, one Parliament cannot bind another and that
no act is irreversible. But legal theory does not always march alongside
political realityLegal theory must give way to practical politicsSo whilst in
theory Mr. Blackburn is quite right that no parliament can bind another, and
that any parliament can reverse what a previous parliament has done,
nevertheless so far as this court is concerned, I think we will wait until that
day comes. We will not pronounce upon it today.
In the United Kingdom as far as primary legislation is concerned all that the
court can do is declare the law. This is compounded by the fact that Britain
has no written constitution against which to measure the legality of an act of
Parliament.
British Coal Corporation v. The Queen [1935] AC:

After finding that Section 4 of the Statutes of Westminster had vested in

the Parliament of Canada the full power to legislate even in contradiction of
Imperial Statutes, Lord Sankey said that there is no doubt that the Imperial
Parliaments power to pass on its own initiative, any legislation that it
thought fit extending to Canada remains unimpaired in theory; that the
Imperial Parliament could as a matter of abstract law, repeal or disregard
Section 4 of the statute. He said that this was however theory and has no
relation to realities.

These cases show that where parliament enacts laws with significant
international and political ramifications; for instance, the granting of
independence, a subsequent parliament would not repeal that law. Even
though, in principle, it has the right to do so.
The UK practices parliamentary supremacy. However, their membership into
the EU imposes upon them certain obligations.
The Human Rights Act was passed to comply with the European Convention
on Human Rights.
Even though parliament can repeal certain law, in practice they would not do
so because they would be in breach of their international obligations.
What courts can do in parliamentary supremacy is to make a declaration
of incompatibility. With this ruling parliament would then change the law
even though they are not bound by the ruling of the courts.
The Demise of Parliamentary Supremacy in the Caribbean
When Britain decided to grant the countries of the Commonwealth Caribbean
independence, she also stipulated that their constitutions be written, as
opposed to the unwritten system, which guides the United Kingdom up until
the present time. The fact that constitutions in the region are written and
declare themselves to be the supreme law of the particular jurisdiction, it
puts a limit on Parliamentary activities that would otherwise have made the
body supreme. The Constitution has given the courts a duty to review Acts of
Parliament to see if its laws are consistent with the stipulations of the
constitution and so it is the Constitution, which is supreme, and not
Parliament.
Juandoo v The Attorney General of Guyana (1986) 12 W.I.R 221 (British
Guiana):

Stoby L.J. said: Before the advent of a written constitution the legislature
of colonial British Guiana was supremeits supremacy was not absolute in
the sense in which the United Kingdom Parliament is absolute. A colonial
governments legislation was subject to the supervision of the Secretary of
State who could withhold his assent if the proposed law infringed certain
cannons of justice or policy. But within the limits of these restrictions the
legislature could introduce laws which were severe or even revolutionary
When internal self-government was introduced, and when independence was
achieved, all those safeguards which had protected colonial peoples from
oppression was engrafted into the Constitution and called fundamental
rights. By inserting them into the Constitution, the result which flowed was
that Parliament became subject to the Constitution, but until it is altered no
legislation can be enacted which infringes a fundamental right.

Constitutional Supremacy
Because of constitutional supremacy, parliament has to make laws that
conform to the constitution. Under the constitution parliament has the
power to make laws for the peace, order and good government of that
jurisdiction. This law making power is subject to the constitution.
The second characteristic is that, parliament in changing the constitution
must conform to the requirements for change that are set out in the
constitution.

Constitutional Restrictions on Parliamentary Sovereignty

Parliament has been given power by the Constitution to make laws for the
peace, order and good government of the land. This is the widest law
making power a legislature may have. Despite this however, this power, the
constitution says, is subject to the provisions of this constitution. It follows
then that; the law of the constitution is higher than any other law, including
law made by Parliament.
Collymore v A.G [1967] 12 WIR 5 (read Chief Justice Frasier):

The appellants being members of the Oilfield Workers Trade Union

unsuccessfully moved the High Court to declare as ultra vires the Industrial
Stabilisation Act 1965, which is declared in its preamble to be an act to

provide, inter alia for the compulsory recognition by employers of Trade

Unions and organizations representative of a majority of workers and for the
establishment of an expeditious system for the settlement of trade disputes
for the settlement of trade disputes. By section 34 a worker is prohibited
from taking part in a strike in connection with any trade dispute unless the
Minister of Labour fails to refer the dispute to the Industrial Court.
The appellants in their motion alleged that apart from being
otherwise repugnant to the constitution, certain provisions of the Act
abrogated, abridged or infringed the right of free collective bargaining and
the right to strike which it was contended are common law rights and are
accordingly encompassed in the fundamental freedom of association which is
specifically recognized and declared in Section 1 (j) of the Constitution and
is protected by Section 2.
Held: (I) that Section 2 of the Constitution of Trinidad and Tobago is an
enactment limiting the power of Parliament and is not a rule to construction;
(II) That the Supreme Court is the guardian of the constitution; consequently
it is not only within its competence but also its right and duty to make
binding declarations, if and whenever warranted, that an enactment passed
by Parliament is ultra vires and therefore void; (III) that the right of free
collective bargaining and the right to strike are not included in the
fundamental freedom of association recognized and declared but Section 1
(j) of the Constitution and are consequently not protected as such under the
provisions of Sections 2 and 6 of the Constitution.
Per Wooding C.J.: Section 36 of the Constitution provides that Subject to
the provision of this Constitution, Parliament, may make laws for the peace,
order and good government of Trinidad and Tobago (It means) that the
power and authority of Parliament to make laws are subject to its provisions.
Parliament may therefore be sovereign within the limits thereby set, but if an
whenever it should seek to make any law such as the Constitution forbids; it
will be acting ultra vires.
He further states: No question of the sovereignty of Parliament arises
here. It is simply a matter of obeying the constitution. No one, not even
Parliament, can disobey the Constitution with impunity. Parliament can
amend the constitution only of the constitutional prescriptions are observed
and providing Parliament fulfills the requirements of the constitution its
powers are sovereign and supreme. But if Parliament fails or neglects to do
so and thereby contravenes the expressed provisions of the Constitution any
person who alleges that he has been, or that he is, or that he is likely to be
prejudiced by such contravention may seek recourse to the high court and
pray its relief.
All the Constitutions of the Commonwealth Caribbean entrust to the courts,
or better still the duty, to examine activities undertaken by the State,

generally, and decide whether those activities are inconsistent with the
Constitution and consequently of no legal effect. This power in the courts to
strike down activities of the state for inconsistency with the Constitution
extends to reviewing Acts of Parliament for such inconsistency. So the courts
may adjudge an Act of Parliament void for repugnance with the constitution.
Hinds v. R [1976] 1 ALL ER 353
In said case, the Privy Council, Lord Diplock dissenting, reaffirmed the
supremacy of the constitution by defining Parliamentary limits in the law
making process, and stating that it was the duty of the court to ensure that
Parliament acted within its powers given by the Constitution. He said: the
Legislature, in the exercise of its power to make laws for the peace, order
and government of the state, may provide for the establishment of new
courts and for the transfer to them of the whole or part of the jurisdiction
previously exercisable by an existing court. What, however, is implicit in the
very structure of the Constitution on the Westminster model is that judicial
power, however it be distributed from time to time between various courts, is
to continue to be vested in the persons appointed to hold judicial office in the
manner and in the terms laid down in the Chapter dealing with the
Judicature, even though this is not expressly stated in the constitution.

Parliament is vested with the power to change the provisions

of the Constitution.
While the Constitution is supreme and as such prevails over inconsistent Acts
of Parliament, still, Parliament is empowered by the constitution to alter any
of the provisions of this Constitution. But that power is subject to the
provisions of the Constitution. Parliament, in changing the constitution must
conform with the requirements for change that are set out in the
constitution.
In order to effect a constitutional amendment, Parliaments in the Caribbean
may have to observe demanding procedures. The ordinary vote of the
Houses of Parliament in the bicameral legislatures, or of the House of
Parliament in the unicameral legislatures, hardly does satisfy the
requirements for constitutional change.
The required procedures vary in degrees of difficult, and the degree of
difficulty encountered in changing provisions depends on which provision is

being altered. These procedures for change are laid down by the Constitution
itself under a scheme called entrenchment.
It is worthy to note that an ordinary majority of those members of a House
of Parliament will not suffice for the purpose of altering the provisions of the
constitution.
Entrenchment: The scheme of entrenchment is the protecting of all or
some of the provisions of a constitution against change by the ordinary
legislative process; that is, the majority. Entrenchment means that the
passing of legislation for the alteration of some or all provisions of the
constitution entails the observance of requirements, which do not have to be
met for the passing of other legislation.
In Payne v. A.G. (1982) 30 WIR 88, it was stated: certain alterations in the
constitution were certainly not left to chance or an ordinary legislative
enactment.
Some entrenchment devices include special formulae and delaying
procedures, through special parliamentary majorities and Senate vetoes, to
referendum requirements.
Special Formulae
There are three kinds of special formulae required by Caribbean
Constitutions to be observed for their alteration:
1. The Special recital or words of enactment (needed in
Jamaica).
A Bill presented to the Governor General or president for the
assent would have a recital of words of enactment stating that it
is being enacted by the Head of State, by and with the advice,
consent and authority of the Houses or House of Parliament, as
the case may be
2. A certain certification of due compliance with particular
requirements for constitutional change in several countries.
This accompanies a Bill designed to change the constitution
when it is being submitted for assent. It is submitted by the
Speaker of the House of Representatives, certifying that the
requisite parliamentary vote has been given to the Bill.
3. Declaration of Intent.
This may be in the form of an Act, which says in its terms that it
intends to alter the constitution.

 Delaying Procedures
This is a favorite entrenching device. Usually, the delaying clause states that
a Bill to change the Constitution or parts of it shall not be submitted for
assent unless there has been some interval of not less than 90 days between
the introduction of the Bill in the Elected House and the beginning of the
second reading or full debate on the Bill in that House.
Bribery Commissioner v. Ranasign [1964] 2 WLR 1301:
Lord Pearce said: No question of sovereignty arises. A Parliament does
not cease to be sovereign whenever its component members fail to produce
among themselves a requisite majority, e.g., when in the case of ordinary
legislation the voting is evenly divided or when in the case of legislation to
amend the constitution there is only a bare majority if the Constitution
requires something more. The minorities are entitled under the Constitution
of Ceylon to have no amendment of it, which is not passed by a two-thirds
majority. The limitation thus imposed on some lesser majority of members
does not limit the sovereign powers of parliament itself which can always,
whenever it chooses, pass the amendment with the requisite majority.
The third aspect of constitutional supremacy relates to judicial review this
refers to the power of the court to review governmental action including
legislation to determine its consistency with the constitution and to declare it
null and void to the extent of any inconsistency.
Fiadjoe states that the power of judicial review may be defined as the
jurisdiction of the superior courts to review laws, decisions, acts and
omissions of public authorities in order to ensure that they act within their
given powers. Broadly speaking, it is the power of the courts to keep public
authority within proper bounds and legality.
The court has no jurisdiction to apply judicial review. Its jurisdiction is always
invoked at the instance of a person who is prejudice or aggrieved by an act
or omission of a public authority.
In the Caribbean, the written constitutions have directly and indirectly
conferred the power of judicial review on the Supreme Court. Arguments
contrary to this can no longer be countenanced. In several ways, the courts
are uniquely placed to adjudicate over the relationship between the citizen
and the state, basing them on the constitution, legislation (where
appropriate), the common law and their inherent supervisory jurisdiction.
The remedy in judicial review proceedings is not intended to detract from
properly constituted authorities the discretionary powers vested in them. Put

another way, it is not permitted to substitute the courts as the bodies making
the decisions. What is intended is that the relevant authorities use their
powers in a proper manner.
Judicial review has given a tremendous boost to the machinery of justice as it
has replaced the prerogative orders of certiorari, mandamus and prohibition,
and has also provided a simpler avenue for the individual with a legitimate
complaint against state action to have access to the courts.
The Basis or Grounds of Judicial Review

1. The Supreme Law Clause from this one may infer the power of the

courts to engage in judicial review Marbury v. Madison 5 US 137.

Justice Marshall said it is emphatically the promise and duty of the
judicial department to say what the law is. If two laws conflict with
each other, the court must determine which of these conflicting rules
govern the case. This is the very essence of judicial duty. He went on
to say essentially that where the constitution is written, it is supreme
and it follows that the courts would have the power to determine
consistency with the constitution. See Collymore.
2. The Doctrine of the Separation of Powers this doctrine is implicit
in Caribbean constitutions and it presupposes that there are certain
checks and balances on the powers of each branch of government.
Since legislation is the product of the Legislature acting essentially at
the direction of cabinet, which is the Executive, it follows that the only
entity in which to vest such a power of review would be an
independent and impartial judiciary.
3. Ouster Clause Within the constitution, there are provisions know as
ouster clause also known as nonjusticeable clauses. What these
clauses do is oust the jurisdiction of the courts. They expressly say
that the judiciary has no authority to review certain actions. The
presence of these ouster clauses which relate to certain executive
actions implies that there is a general jurisdiction for the courts to
review the rest of the constitution.
4. Fundamental Rights Provision even though the constitution does
not confirm a general express power to review legislation in relation to
the fundamental rights provision, there exists a specific express
provision conferring on the Supreme Court the power to entertain any
claim that there has been a contravention of the fundamental rights
provision. S.25 and s. 26. Look at Collymore and Hinds.
Reyes v. The Queen [2002] 2 WLR 1034

Lord Bingham said: where an enacted law is said to be incompatible with a

right protected by the constitution the courts duty remains one of
interpretation. The court has no license to read its own predilections and
moral values into the constitution.

Limitations on the Right of Review

1. Locus Standi in order to bring an action for judicial review, the

claimant must show that he has sufficient interest.
2. Anticipatory Review the court will not review a Bill (a proposed
law) prior to its enactment. The Bahamas Methodist v. Symonette
[2000] 59 WIR 1 - In this case, the court held that it is the right and
duty of the courts to give supremacy to the constitution and that the
courts should avoid intervening in the parliamentary process unless it
is necessary for the courts to give the protection intended by the
constitution.
So pre-enactment relief could only be granted in
exceptional circumstances where such protection would only be
effective if the court intervene at that early stage.
3. Savings Law Clauses they may operate to preclude the courts from
making such a declaration of inconsistency if they are given a strict
interpretation. There are three types of savings law clauses with
different purpose:
Modification Clause
The purpose of the modification clause is twofold:
1. To ensure that existing laws did not cease to have force on the
coming into effect of the new legal order and;
2. To provide a means by which existing laws could be modified or
adopted to ensure their conformity with the constitution and
consequently preclude successful challenge on the grounds of
constitutional incompatibility.
DPP v. Mollison [2003] 64 WIR 140; 2 AC 411

It was held that far from protecting existing laws from constitutional
challenge, this clause recognizes that existing laws may be susceptible to
constitutional challenge and accordingly confers power on the courts to

modify and adopt existing laws so as to bring them into conformity with the
constitution.

Green-Brown v. R [200] 1 AC 45:

The Privy Council held that a proviso in a statute directing that a person who
was convicted of murder but was too young to be hanged, should be
detained at the Governor Generals pleasure, was in breach of the
Constitution of St. Kitts and Nevis because such detention deprived a person
of his liberty otherwise than in execution of an order or a sentence of a
court., The Privy Council referred to the counterpart in St. Christopher and
Nevis of our section 5 (1) and held that it imposed a duty on the court to
decide what modifications required to be made to have the offending
provision in the proviso and to give effect to it in its modified form, not to
strike down the proviso altogether. The Privy Council went on to hold that the
proviso should in effect be amended so as to substitute detention during the
courts pleasure for detention during the Governor Generals pleasure and
remitted the case to the Court of Appeal.
The General Savings Law Clause
This is found in the Bill of Rights. It saves laws that existed prior to the
independence constitution. Like the special saving law clause, it has the
potential to affect the fundamental rights and freedoms contained in the
constitution. Consequently, the courts tend to construe it narrowly to limit
its operation.
Watson v The Queen [2004] 64 WIR 241
The courts generally reduce the limitations of these savings law clauses by
invoking the separation of powers doctrine. This is because the Special and
the General Savings Law Clauses apply only to override the fundamental
rights provisions but they cannot be relied on to defeat a challenge based on
the separation of powers. This would undermine the supremacy of the
constitution.
Consequences of Judicial Review

1. If a court reviews an act of parliament, finds it to be inconsistent, it will

be null and void ad inicio (from the beginning).
2. They could sever unconstitutional parts Hinds; AG v. Goodwin [2001] 2
LRC 1