COMMONWEALTH CARIBBEAN CONSTITUTIONAL LAW pdf

Commonwealth Caribbean Constitutional LawC Conventions affecting legislative and parliamentary powers 29 D Conventions affecting the legislature 29 E The right to protection from depriva

CARIBBEAN CONSTITUTIONAL LAW

Cavendish Publishing Limited

London • Sydney

Sir Fred Phillips

CVO, QC, LLB (Lon)MCL (McGill Uni), LLD (Hon) UWI

former Governor, St Kitts/Nevis/Anguilla

COMMONWEALTH

CARIBBEAN CONSTITUTIONAL LAW

Cavendish Publishing Limited

London • Sydney

First published in Great Britain 2002 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom

British Library Cataloguing in Publication Data

Phillips, Sir Fred

Commonwealth Caribbean constitutional law

1 Constitutional law—West Indies, British

this book would never have been completed.

Over the last 30–40 years, the former territories of the British Caribbean have been

a laboratory in which the generally accepted ‘Westminster System’ is being adapted

to suit the patterns of behaviour of the people of the area

Sir Fred Phillips has played an active part in some of these processes of adaptationand in other cases he has been an informed observer whose advice has been sought

by the participants themselves

His record of the events of that period is invaluable for the people of the BritishCaribbean and their leaders A thorough understanding of the past is the bestsafeguard against a repetition of the mistakes which may have been made.The book will also prove a useful resource for students at all levels from thesecondary schools to those engaged in post-graduate studies By making the citizens

of each country more acutely aware of the events which have taken place inneighbouring countries, it will also contribute to the creation of a Caribbean nation.The objective of all constitutions is, undeniably, the preservation of the freedom

of the individual and the enlargement of the area of his and her participation in theconduct of public affairs

Sir Fred’s analysis of the recent case law provides a convenient compilation ofthe legal developments over the period which will certainly be of assistance topractitioners whose advice will be sought, as new circumstances bring new problems

to the fore

The Right Honourable P Telford Georges

Preface vii

PART I

H In the case of cession from another power or conquest 6

A Development in the direction of qualifying sovereignty of Parliament 11

The proper basis for the separation concept 17

J Astaphan and Co Ltd v Comptroller of Customs of Dominica 20

The symbiosis between legislature and the executive 21

Commonwealth Caribbean Constitutional Law

C Conventions affecting legislative and parliamentary powers 29

D Conventions affecting the legislature 29

E The right to protection from deprivation of property 69

2 The case of Yearwood v AG of St Kitts/Nevis/Anguilla 71

3 The case of Krakash Singh v AG of Trinidad and Tobago 73

4 The case of Morgan v AG of Trinidad and Tobago 75

5 The case of AG ofSt Kitts/Nevis v Edmund Lawrence 80

8 Mootoo v AG of Trinidad and Tobago 87

F The right to retain and instruct a legal adviser 92

G Protection from inhuman and degrading punishment 95

Fisher v Minister of Public Safety and Immigration 101

PART II

A Anguilla—A history of neglect: its eventual secession and beyond 115

Recommendations for constitutional change 138

Commonwealth Caribbean Constitutional Law

Final stages towards self-determination 144Ideological basis for the 1980 Constitution 145

Need for substantial constitutional change by 2001 150

CHAPTER 10: GRENADA—GRENADA’S REVOLUTION AND BEYOND 179

The People’s Revolutionary Government seizes control 183

Relevance of defence of State necessity 192

CHAPTER 11: DOMINICA, ST VINCENT, ST LUCIA AND A NEW

The Union Island uprising of 7 December 1979 212

A further inchoate attempt at sub-regional political union 217

CHAPTER 12: ANTIGUA AND BARBUDA, BARBADOS, JAMAICA AND

Barbudan delegation’s proposals to the conference 225Antigua Government attempts to placate Barbuda 227Fetter upon the sovereignty of Antigua 232

Commonwealth Caribbean Constitutional Law

Service commissions 260

Patriation of the Belize Constitution 261

Dismissal of members of higher judiciary 263

PART III

C Confrontation in Malaysia between the executive and the judiciary 266

E Judicial institutional independence in Australia, Canada and the US 269

I The state of judicial ethics in the Caribbean 274

K International recognition of judicial independence 277

L Application of international norms to the Caribbean 279

M Court administration in the Caribbean 280

Commonwealth Caribbean Constitutional Law

N Intervention by distinguished jurist 281

T The case of the flawed appointment of the Belize CJ 287

U Two landmark cases alleging loss of independence and judicial bias 289

V The case of Chief Justice Julias Isaac 289

Historical background of dismissal at pleasure 303

Public servants and Caribbean independence constitutions 305Special consitutional protection to certain public officers 308

3 The Angela Inniss (registrar) case 313

4 The Julia Lawrence (Director of Audit) case 314

CHAPTER 15: HEADS OF STATE 319

Present day position regarding classification of nomenclature 320Functions and powers of Heads of State 320Discharge of functions in absence of Presidents 322Immunities of Presidents and removal from office 323Governors General: appointment and functions 326

Unique position of the Queen’s representative in Grenada 328Experiences of certain other Heads of State in the region 331

Constitutions to be kept under constant review 338What objectives should a constitution serve? 339CARICOM’s intervention in Guyana, St Kitts/Nevis and St Vincent 340The impact of the United Nations and the Organisation of American States 340

Abbott v Attorney General of Trinidad and Tobago

Amendment of the Constitution of Canada, Ref re

Amministrazione delle Finanze dello Stato v Simmenthal Spa

Angela Inniss v Attorney General of St Kitts and Nevis

(Misc Suit No 53 of 1998, Judgment 21 February 2000)

Application by the Grenada Bar Association for a Declaration

that the provisions of ss 86(1), 86(5) and 86(6) of the

Grenada Constitution Order 1973 had been contravened

(Holdip (DPP) Case) (Suit No 650 of 1998,

Attorney General of Antigua v Antigua Times Ltd

Attorney General of St Christopher/Nevis/Anguilla

Attorney General of St Christopher and Nevis

Attorney General of Trinidad and Tobago

Attorney General of Trinidad and Tobago

Attorney General of Trinidad and Tobago

Attorney General of Trinidad and Tobago

Barbuda Council and Attorney General (Suit No 456 of 1988,

Barbuda Council and Attorney General and Unicorn

Development Ltd (Suit No 259 of 1985, HC of Justice:

Commonwealth Caribbean Constitutional Law

Barbuda Council and Attorney General and Unicorn

Development Ltd (Suit No 412 of 1998, HC of Justice:

Bata Shoe Co Ltd et al v CIR and Attorney General of Guyana

Camacho & Sons Ltd and Others v Collector of Customs

Chernaci v Chemaci (1960) Northern Region of

Collymore v Attorney General of Trinidad and Tobago

Commissioner for Motor Transport v Antill Ranger & Co Ltd

Crofter Hand Woven Harris Tweed Co Ltd

de Freitas v Permanent Secretary of Ministry of Agriculture

Demerieux v Attorney General of Barbados

Director of Public Prosecution v Nasralla

Dole Chadee (1999) 1 WIR 1709 102

East African Asians v United Kingdom

Felixstowe Dock and Railway Co v British Transport Docks

Fisher v Minister of Public Safety and Immigration

Grand Anse Estates Ltd v Governor General of Grenada and

Gulf Rental Ltd v Evelyn and Carvallho

Hamilton and Others, Re; In the Matter of the Application of

Bornston Matthews and Others under the Constitution

Harrikissoon v Attorney General

Hector v Attorney General of Antigua and BArbuda

Commonwealth Caribbean Constitutional Law

Julia Lawrence (Director of Audit) Case

Kitson Branche v Attorney General of Trinidad and Tobago

Mootoo v Attorney General of Trinidad and Tobago

Naomi Shire Council v Attorney General for New South Wales

Open Door Counselling and Dublin Well Woman

Rambachan v Trinidad and Tobago Television Ltd

Raphael v The Bank of England (Governor and Co)

Revere Jamaica Alumina Ltd v Attorney General of Jamaica

Richards v Attorney General of St Kitts and Nevis

Commonwealth Caribbean Constitutional Law

Riley et al v Attorney General of Jamaica (1982) 35 WIR 279;

Unicorn Development Ltd and Barbuda Council

Van Gend en Loos v Nederlande Tarief Commissie

Yearwood v Attorney General of St Kitts/Nevis/Anguilla and

Constitution of the Vestry

Antigua and Barbuda

Hotel Tax Ordinance 1962

Commonwealth Caribbean Constitutional Law

Tobacco Control Ordinance

Electrical Wiremen (Licensing)

Commonwealth Caribbean Constitutional Law

European and International

European Convention for the Protection of Human Rights and Fundamental

Treaty Establishing the Organisation

of Eastern Caribbean States (OECS) (Treaty of Basseterre) 186, 187

Constitutional Judicature (Restoration) (Amendment)

Commonwealth Caribbean Constitutional Law

Commonwealth Caribbean Constitutional Law

National Bank Ltd (Special

Trinidad and Tobago

Conspiracy and Protection of

Constitution (Amendment) Act 1996

Commonwealth Caribbean Constitutional Law

Rent Registration Ordinance

Rent Restriction (Dwelling

Tobago House of Assembly Act

Tobago House of Assembly Act 1996—

Trade Disputes and Protection of

Trinidad and Tobago Republic Constitution Act 1976,

Anguilla Act 1971 118, 121

British Nationality and Status

House of Lords Precedence

Judicial Committee (Amendment)

Queen Regent’s Prerogative

Anguilla (Appointed Day) Order 1980 122

Broadcasting and Television Regulations 1984—

Emergency Powers Regulations 1967 SR & O

Commonwealth Caribbean Constitutional Law

Leeward Islands (Emergency Powers) Order

Commonwealth Caribbean Constitutional Law

I dealt in depth in Chapter I of the edition of this work published by Ocean PublicationsInc, Dobbs Ferry, New York, in 1985 with the manner in which the People’s Revolution

of 1979 had affected the constitutional position of Grenada and with the initialarrangements for bringing the country back to normality after the Governor Generalhad found it requisite on the basis of State necessity to intervene In Chapter II, Iconsidered the 1980 Republican Constitution of Guyana, outlining what had beenachieved by that Instrument which was heavily influenced by socialist ideas ChapterIII examined some unique political events which affected the governance of Dominica,

St Lucia, and (to a lesser extent) St Vincent and the Grenadines Chapter IV reviewedthe Trinidad and Tobago position while Chapter V was concerned with the ratherunique union between St Kitts, Nevis and Anguilla Chapter VI dealt with Antiguaand Barbuda, Barbados, Jamaica and Belize Chapter VII was a critique on the non-independent Caribbean territories Chapter VIII touched very briefly on the Judiciary,while Chapter IX considered some important judgments of Caribbean courts in thefield of human rights Chapter X succinctly reviewed the position of Governors andGovernor-General in their role of representatives of the Head of State (the Queen)and compared their situation with the Presidents of Guyana, Trinidad and Tobagoand Dominica (Heads of State in their own right) Chapter XI provided an Epilogue

I have felt a great sense of obligation to those lawyers and students who, havingread the first edition, have been kind enough to write to commend me for havingproduced it and to suggest that I should now do a further edition, bringing it up todate Many students in our University’s Faculties of Law and Social Sciences, aswell as in the United Kingdom and North America, found the book helpful inwriting papers for higher degrees Several legal practitioners who found the bookuseful in their professional work have written to me to say so

In this second edition which is entitled Commonwealth Caribbean Constitutional Law, I have drastically changed the original format of the book.

Part I is written mainly for legal students and those who are being introduced tothe subject for the first time (for example, students of political science) but might well

be read by legal practitioners and law teachers who wish to refresh their memories

It covers such broad themes as the sources of our constitutional law and the reception

of English Law; the Rule of Law; the Sovereignty of Parliament; the Separation ofPowers; and the Conventions of the Constitution In this Part I also deal in somedetail with a number of recent decided cases affecting Bills of Right matters

I have dealt in Part II with Guyana and St Kitts/Nevis as well as with Grenada,

St Vincent and the Grenadines, St Lucia, Dominica, Antigua and Barbuda, Barbados,Jamaica, Belize and Trinidad and Tobago In Chapter 11, I have inserted a section

on another failed attempt at political union about which legal scholars have not yetwritten

In Part III I have written a lengthy chapter on the Judiciary which at the beginning

of the 21st century is a subject of much interest to lawyers and others I have alsodealt with the Public Service and with the type of Heads of State who should presideover our jurisdictions The final chapter provides a short Epilogue

Commonwealth Caribbean Constitutional Law

In the chapters dealing with Grenada, Trinidad and Tobago, Barbados, St Lucia, StVincent, Dominica, Guyana, St Kitts and Nevis, Jamaica, Antigua and Barbuda, Ihave deliberately included full details of political developments affecting the operation

of the independence instruments I have also discussed the various ConstitutionCommissions which have since 1984 been reviewing the constitutions of the respectivejurisdictions My object is twofold: to acquaint the general reader of what has beentaking place in these vital matters and hopefully to prevent any government proposing

to engage in constitutional changes from ‘re-inventing the wheel’ In this respect, ithas surprised me greatly, having chaired three of the Commissions, how little thepeople of one territory know of what has been happening in another territory

I must specially mention Professor Fiadjoe at the Faculty of Law at Cave Hill aswell as former Senior Lecturer in Law, Dr Francis Alexis I have derived muchassistance from the writings of these two publicists

I wish to commend the indulgence of Oceana Publications Inc, my formerpublishers, for permitting me to use the material in West Indian Constitutions Post-Independence Reform contained in the following pages of that volume: 3–7, 9–11,15–24, 53–66, 73–93, 95–104, 115–38, 141–57, 165–74, 205–16, 219–40, 242–68, 272–

80, 301–17, 318–20, 328–30, 333–34 and 335

Senator Velma Newton of the University of the West Indies Faculty of Law Librarywas extremely helpful in answer to my many requests and I convey my gratitude

to her and her staff

Mrs Sandra-Dawn Husbands-Patterson was kind enough as to assist with theresearch on the relation between the Barbados Executive and the Legislature in sofar as the separation of powers is concerned I wish to thank her very much.Miss Doreen Applewhaite has borne the brunt of the typing and re-typingassociated with the production of the book and I greatly appreciate her assistance

My wife Gloria has been a veritable tower of strength, stoically accepting thelengthy periods of silence and non-communication that go with writing of thisnature She has encouraged me in every way to complete this book and I owe her agreater debt than I can repay

Mr Justice Telford Georges has been once again kind enough to read the entiremanuscript and to furnish his usually discerning comments He has served as aHigh Court Judge in Trinidad and Tobago; as a Professor of Law and Dean of theFaculty of Law in the University of the West Indies; as Chief Justice in Tanzania,Zimbabwe and the Bahamas; as President of the Belize Court of Appeal; and as aMember of the Appeal Courts of the Seychelles, Bermuda and the Cayman Islands—

in the course of which he has found time to sit on occasion on the Judicial Committee

of the Privy Council in London I cannot thank him too much for the generouswords he has written in the Foreword to this volume

My publishers, Cavendish Publishing, have been most efficient and helpful Theydeserve highest commendation

Finally, for any errors or other defects that may have found their way into thetext, the responsibility is mine and mine alone In true Trumanian language: ‘Thebuck stops here.’