Constitutional Law: Sovereignty, Judicial Review - PDF

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 cit...

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.​ Local Drafting 2.​ Local Debates on the Draft 3.​ Discussion and negotiation in England at Constitutional Convention 4.​ Ratification by Local Legislature 5.​ UK Act of Parliament However, one criticism is that Caribbean constitutions were ‘imposed’ and there is a lack of autochthony (wasn’t home grown). Trinidad and Tobago as well as Guyana abandoned the Independence Constitution. 1 | Page 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 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.​ 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. ii.​ Separation of Head of State and the Head of Government (there is a fusion of both offices in the U.S and Guyana). iii.​ Cabinet Government – the Prime Minister chooses cabinet members from Parliament and cabinet members are collectively responsible to Parliament. Together they compose the Executive. iv.​ The Prime Minister must come from the lower/elected house. v.​ The Westminster Model has a bicameral legislature (Senate and the House of Representatives). vi.​ There is a similar voting system – first past the post compared to proportional representation (70% of votes = 70% of seats). 2 | Page 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 can’t change them. Application – Relevance of the term ‘Westminster Model’ Adegbenro v Akintola 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 don’t). 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. 3 | Page 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 4 | Page 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: “The…supremacy 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 Britain’s participation in the European Union is that Parliamentary supremacy may no longer be regarded as the cornerstone of British constitutional law. 5 | Page Lord Nolan pointed out the fact that as a matter of law Parliament’s 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. What parliament does today would not bind it in the future. Blackburn 500 v. The A.G 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 majesty’s 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 reality…Legal theory must give way to practical politics…So 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 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 Parliament’s 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. 6 | Page 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 supreme…its supremacy was not absolute in the sense in which the United Kingdom Parliament is absolute. A colonial government’s 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, 7 | Page 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 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 8 | Page 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 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 9 | Page 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. 10 | Page  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 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 11 | Page 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 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.” 12 | Page 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 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 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 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 General’s 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 13 | Page 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 court’s pleasure’ for detention ‘during the Governor General’s 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 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 2 LRC 1​ 14 | Page