CONSTITUTIONAL LAW

The Rule of Law

‘Rule of Law’ defined
The term ‘rule of law’ is derived from
the French phrase ‘La Principe de
Legalite’ (the principle of legality),
i.e. a Government based on the
principles of law and not of man.
"The King himself ought not to be
subject to man, but subject to God
and the law, because the law makes
him King".
Professor A.V. Dicey has developed
the concept of the Rule of Law, which
contemplates the absence of wide
powers in the hands of government
officials. He noted that wherever
there is desecration (vandalism/ruin)
there is room for arbitrariness
(uncertainty).
According to Dicey, the rule of law is
one of the fundamental principles of
the Constitution.
The rule of law therefore means:
 Absence of Arbitrary Power or
Supremacy of Law
 Equality before law
 Constitution is the result of the
ordinary law of the land
Absence of Arbitrary
Power/Supremacy of Law
The rule of law means the absolute
supremacy or predominance of
regular law as opposed to the
influence of arbitrary power or wide
discretionary power.
Absence of Arbitrary
Power/Supremacy of Law
The rule of law is contrasted with
every system of government based
on the exercise by person in authority
of wide arbitrary or discretionary
powers of constraint.
Equality before the Law
Rule of Law means the equality of law
or equal subjugation of all classes to
the ordinary law of the land
administered by the ordinary courts
of law.
Equality before the Law
In this sense, the rule of law conveys
that no man is above the law; that
officials like private citizens are under
a duty to obey the same law, and
there can be no special court or
administrative tribunal for the state
officials.
The Constitution
The rule of law states that the
constitution is not the source but the
consequence of the rights of
individuals. Thus the courts of law are
guarantors of liberty. (See cartoon
above)
Criticism of AV Dicey’s
formulation of the rule of law
AV Dicey’s formulation of the
meaning of the rule of law has been
heavily criticized and rejected in its
totality.
The modern concept of the rule of law
was developed by the International
Commission of Jurists, known as the
Delhi Declaration, 1959.
Accordingly…
“the rule of law implies that the functions of
the government in a free society should be
so exercised as to create conditions in
which the dignity of man as an individual is
upheld. This dignity requires not only the
recognition of certain civil or political rights
but also creation of certain political, social,
economical, educational and cultural
conditions which are essential to the full
development of his personality.”
The rule of law does not and cannot
mean any government under any law,
but it means a law which is passed in
a democratically elected parliament
after adequate debate and discussion.
It is, (1) law and order, (2) fixed
rules, (3) elimination of discretion,
(4) due process of law/fairness, (5)
natural law or the observance of the
principles of natural justice, and (6)
judicial review of administrative
decisions
The principles outlined by AV Dicey
and the Delhi Declaration have all
been enshrined in the Caribbean
Constitutions.
It has been submitted by Albert
Fiadjoe, that, “the Caribbean ought to
address issues such as access to
justice, modernisation of the law and
the judicial system, development of
an efficient court administration
machinery, judicial training and
alternative dispute resolution
mechanisms, among others.”
What are your comments
on these issues?
In West Indian Public Law the ‘Rule of
Law’ has come to mean the exercise
of State power according to law and
the subjugation of State power to the
constitution.
The Rule of Law defines citizens
rights or legitimate expectations to
hold the State accountable for its
actions.

The Rule of Law, in its most basic

form, is the principle that no one is
above the law.
 The most important application of the
rule of law is the principle that
governmental authority is legitimately
exercised only in accordance with
written, publicly disclosed laws
adopted and enforced in accordance
with established procedural steps that
are referred to as due process.
 The Rule of Law cannot exist without a
transparent legal system, the main
components of which are:
1. a clear set of laws that are freely and
easily accessible to all
2. strong enforcement structures, and
3. an independent judiciary to protect
citizens against the arbitrary use of
power by the state, individuals or
any other organisation.
Accountability and the
Executive Arm of Government
Caribbean Courts have from time to
time reviewed the exercise of
administrative powers by the
executive arm of government.
Hochoy v Nuge (1964) 7 WIR
174
A claim by an applicant that the
Governor had exceeded his authority
in setting up a commission of inquiry
was resisted with the argument that
the Governor, as the Queen’s
representative, was immune from suit
and that the court had no jurisdiction
over him.
That argument was strongly rejected by
the court, holding that the Courts of
the country are the Queen’s courts
and not those of her representative,
and as her immunity from suit in her
courts was essentially personal, the
appelant as her representative could
lay no claim to such a privilege.
According to Wooding CJ in Hochoy,
“…while the courts have been astute to
preserve the immunity from liability of
officers of State in the due performance of
acts of a political character, they have
never conceded that any such officer may
be immune from suit. The reason is that
immunity from suit is personal to the
sovereign and stems directly from the
ancient doctrine that no Lord could be
compelled to answer in his own court.”
Sugar Producers Federation v
Phillips (1965) 9 WIR 120
In this case, the GG exercised his
statutory powers to appoint a
commission to inquire into ‘an
existing or apprehended trade
dispute’ in the sugar industry.
Sugar Producers Federation v
Phillips (1965) 9 WIR 120 (cont.)
This action was challenged on the
ground that no dispute existed or was
apprehended. The GG’s claim that his
action was not subject to review by
the courts was rejected and the
commission was restrained from
conducting the inquiry.
Accountability and the
Legislative Arm of Government
 Do you remember the case of Collymore v
AG, which established that the legislature is
subject to the prescriptions of the
constitution?
 Where the transgression by the legislature
has been egregious, the jurisdiction of the
courts to strike down legislation for
unconstitutionality has not been found
wanting.
Hector v AG of Antigua and
Barbuda (1990) 37 WIR 216
 In this case, the Public Order Act
1972, made it and offence, among
other things, for any person to print
or distribute any false statement
which is likely to cause fear or alarm
in or to the public or to disturb the
public peace, or to undermine public
confidence in the conduct o public
affairs.
Hector v AG of Antigua and
Barbuda (1990) 37 WIR 216
 The court in holding that the words ‘
to undermine public confidence in the
conduct of public officers’ said that in
a free democratic society, there is an
obvious need to state that public
officials must always be open to
criticism. Any attempt to stifle such
criticism amounts to political
censorship of an objectionable kind.
Accountability and the Judiciary
 The judiciary is not above judicial
review for its wrongful acts which
infringe the bill of rights.
Maharaj v AG of TT (No.2)
[1979] AC 385
 A judge of the High Court had
wrongfully committed a lawyer to
prison for contempt of court in breach
of natural justice requirements,
because he was not given the
opportunity to oppose the charge or
seek legal representation. The
barrister sued the state for the
infringement of his rights.
 The Privy Council held that the failure
of the judge to inform the lawyer of
the specific nature of the contempt
with which he was charged before
committing to him to prison,
contravened a constitutional right of
the appellant deserving of protection
in law.
Accountability and Other State
Institutions
 Virtually no area of authority is
immune from the scrutiny of the
courts. The courts philosophy is that
of citizen protection.
CONSTITUTIONAL LAW 3

SEPARATION OF POWERS
DOCTRINE
 The doctrine of the Separation of
Powers play a pivotal role in
containing the stresses of the political
process of government.
Classification of the Doctrine

(a)The differentiation of the concepts

‘legislative’, ‘executive’, and ‘judicial’
(b)The Legal incompatibility of office
holding as between members of one
branch of government and those of
another, with or without physical
separation of persons.
(c)The isolation, immunity, or
independence of one branch of
government from the actions or
interference of another.
(d)The checking or balancing of one branch
of government by the action of another.
(e)The co-ordinate status and lack of
accountability of one branch to another.
 However, it has been argued that for
our democracy to operate effectively,
it is necessary that a certain comity
should exist between the three
branches.
 Each should respect the role and
function of the other.
 The Court is subject to and must
enforce laws passed by Parliament that
are intra vires the Constitution.
 The Executive should respect and obey
the decisions and accept the warnings
of the Court.
 If this comity does not exist, then the
wheels of democracy would not turn
smoothly.
Hinds v R
 By the Gun Court Act 1974 the
Parliament of Jamaica established a
new court, the Gun Court, to try
"firearms offences." The Act provided
for three divisions of the court;
 (1) the Circuit Court Division and (2)
the Resident Magistrate's Division,
constituted by a Supreme Court
judge and a resident magistrate
respectively, and (3) the Full Court
Division constituted by three resident
magistrates.
 The jurisdiction of the first two
divisions was that of a Circuit Court
and of a resident magistrate
respectively in relation to firearms
offences and certain other offences
but extended geographically to cover
the whole island instead of being
restricted to specific parishes.
 The jurisdiction of the Full Court
Division was, with the exception of
capital offences, expressed to be over
any firearms offence or other offence
committed by a person detained for a
firearms offence and was also to
cover the whole island.
 Such jurisdiction, at the time the
Constitution came into force, had
been exercisable only by a Supreme
Court judge in the Circuit Court. The
Full Court Division had never sat.
 The Constitution provided by section 20 (3)
that all proceedings of every court should
be held in public subject to the exceptions
in subsection (4), by paragraph (c) (ii) of
which a court was empowered to exclude
the public in the interests of public safety,
public order and for the protection of the
private lives of persons concerned in the
proceedings. The Gun Court Act provided
by section 13 (1) that all trials should be in
camera "in the interest of public safety,
public order or the protection of private
lives of persons concerned in the
 proceedings...." Section 8 prescribed a
mandatory sentence of detention at hard
labour during the Governor-General's
pleasure for specified offences,
determinable only by the Governor-
General on the advice of the Review
Board. The Review Board established by
section 22 of the Act consisted of five
members of whom only the chairman
was a member of the judiciary.
 Each of the defendants was convicted in a
Resident Magistrate's Division of the Gun
Court for an offence carrying the
mandatory sentence. They all appealed to
the Court of Appeal against conviction and
sentence on the grounds that the Gun
Court Act or those of its provisions under
which they had been tried and sentenced
were inconsistent with the Constitution and
void. The appeals of four of them were
dismissed, that of the fifth allowed (by the
Court of Appeal differently constituted).
The unsuccessful parties appealed
Ruling of the Privy Council
 (1) that the provisions of the Gun Court Act
relating to the Circuit Court Division and
the Resident Magistrate's Division which did
no more than extend geographically the
jurisdiction of a Supreme Court judge in a
Circuit Court and a resident magistrate
respectively were not contrary to the
Constitution and were valid; accordingly,
the defendants were convicted by a court of
competent jurisdiction
 (iii) That the principle of separation of powers
was implicit in the Constitution and
Parliament had no power to transfer from the
judiciary to the Review Board, the majority of
whose members were not qualified to
exercise judicial powers, a discretion to
determine the severity of punishment to be
inflicted on an individual member of a class of
offenders and, accordingly, the provisions of
sections 8 and 22 of the Gun Court Act were
contrary to the Constitution and void and the
sentences passed on the defendants unlawful
 (iv) That the provisions of the Act which
were inconsistent with the Constitution
were severable from the valid provisions,
since the valid provisions would survive
without the invalid, and, on a fair review
of the matter, it could be assumed that
the legislature, knowing that certain
provisions were invalid, would have
enacted the valid provisions without
enacting those which were ultra vires
Lord Diplock
 Nevertheless all these constitutions have two
things in common which have an important
bearing on their interpretation. They differ
fundamentally in their nature from ordinary
legislation passed by the parliament
of a sovereign state. They embody what is in
substance an agreement reached between
representatives of the various shades of
political opinion in the state as to the
structure of the organs of government
through which the plenitude of the sovereign
power of the state is to be exercised in
future.
 All of them were negotiated as well as
drafted by persons nurtured in the
tradition of that branch of the common
law of England that is concerned with
public law and familiar in particular with
the basic concept of separation of
legislative, executive and judicial power
as it had been developed in the unwritten
constitution of the United Kingdom.
 As to their subject matter, the
peoples 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 case
of unitary states, were evolutionary not
revolutionary. They provided for continuity of
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.
Implications of Hinds v R
 Hinds represented the case in which a legislative
provision of Jamaica was declared void for
infringing that Constitution’s prescriptions on the
legislative power of Parliament.

 Hinds settled the point that there is indeed a

separation of the legislative and executive
powers from the judicial power and that the
Supreme Court’s jurisdiction is specially
protected.
Implications of Hinds v R
 Hinds reaffirms the constitutional
fundamentals of judicial
independence.
 Hinds accepts the view that the
Separation of Powers doctrine is
implicit in the Westminster export
model constitutions.