UNIT IV
SOURCES OF LAW
THE CONSTITUTION
INTRODUCTION
The written Constitution is arguably the most important legal source in the
Commonwealth Caribbean. This is so for two reasons. First, the Constitution is
the founding document confirming the independent status of Commonwealth
Caribbean States. The Constitution represents a symbolic break with colonialism
and the former British colonial masters. This is because written Constitutions in
the Commonwealth Caribbean only blossomed in the post-independence period,
although, of course, limited written constitutional instruments were evident before
independence. Indeed, the phenomenon that is the written Constitution does not
exist in the UK. A Constitution should be an indigenous source of law and a true
manifestation of the political will of the people.
INTRODUCTION
Constitutional law is the meeting place of government and law and
constitutions are enabling instruments that provide a continuing
framework for the legitimate exercise of governmental power. They
also structure relationships between people and institutions of
government and mediate relationships between people through
basic shared terms for governance and living.
INTRODUCTION
Caribbean constitutions are considered to be fundamental or
organic because they address the values that would support a
certain conception of the good life and justice and [provide] an
elaboration of those institutions by means of which this way of life is
to be achieved.
INTRODUCTION
The body of law described as Caribbean constitutional law extends
beyond the document formally referred to as “the Constitution.” The
written constitutions are the foremost, though not the only source of
constitutional law. There are rules that are not in the written text that are
clearly constitutional in functional effect – Matters relating to governance,
basic values and the powers ascribed to the organs and institutions of
government are addressed in and complemented by a variety of statutes,
constitutional conventions, unwritten principles and judicial precedent.
The functions of a constitution are:
FUNCTIONS OF
CONSTITUTIONS
1.
Establishes the institutions of
government
2.
Clarifies where sovereignty lies
3.
Balances the rights of persons and
the interests of the majority
4.
Articulates core values and
commitments
5.
Identifies the territory and who
belongs
The constitutions authorize the exercise of power
by governmental institutions and they limit that
Establishes
the
institutions
of
government
exercise of power. The constitutions establish he
parameters within which the country will be
governed and create the multitude of institutional
structures of government that are designed to
facilitate good governance and democracy. They
also determine who will be officers of the various
institutions of government, what their functions are
and how they will be selected and supervised.
Through their detailed provisions, Caribbean
constitutions clarify where sovereignty lies. All
Clarifies
where
sovereignty
lies
but three of the independent states are
constitutional monarchies in which executive
authority is vested in the Queen represented by
a Governor General. The latter has a mostly
ceremonial role and true executive power is
exercised by the Prime Minister and his or her
Cabinet.
The constitutions impose limits on what the state can do and
provide protections against governmental misconduct. They
do so in part by defining the relationships between
Balances the
rights of
persons and
the interests of
the majority
institutions of government, and also by safeguarding the
rights of persons and elaborating on the duties of the state
towards persons.
Caribbean constitutions establish democratic institutions that
make laws to facilitate the peace, order and good
governance of the territory. The power of the democratic
majority to make laws is tempered by constitutional chapters
dealing with fundamental rights. Through these chapters, the
constitutions determine the appropriate balance between the
rights of individuals and in some cases, collectives and the
will of the majority.
Caribbean constitutions are normative instruments that
set out fundamental values and norms for their societies.
These core values serves as guide-posts leading into an
Articulates
core values
and
commitments
uncertain
future.
constitutions
and
The
preambles
their
chapters
to
Caribbean
devoted
to
the
fundamental rights and freedoms most clearly enunciate
the core norms that, according to Wit J of the CCJ
breathe life into the clay of the more formal provisions
and shape the latter’s interpretation. The main ideals that
permeate Caribbean constitutions are the preservation
of democracy and respect for the rule of law and the
protection of human rights.
As the fundamental law, Caribbean constitutional
law identifies who qualifies as a citizen or as
someone who belongs to the jurisdiction. The
Identifies the
territory and
who belongs
chapters devoted to citizenship in Caribbean
constitutions and the constitutional provisions that
identify which persons are entitles to freedom of
movement are complemented by immigration and
nationality laws. Together these determine who
has the right to live in the territory, the full benefit
of
services
provided
by
the
state
and
of
participation in the political community and in the
economic life of that society.
ELEMENTS OF MODERN
CARIBBEAN
CONSTITUTIONALISM
Modern
constitutionalism
in
the
Anglophone Caribbean bears n imprint of a
long history of constitutional laws premised
on “hierarchies of colonial difference” and
constitutional tragedies arising from
tensions
between
what
colonial
constitutions countenanced and what can
be considered just polity. Modern
Constitutionalism therefore contemplates:
1.
Ancestral silences
2.
Political traditionalism
3.
Legality and order
4.
Smadditisation
5.
Caribbean alliances
There
are
distinct
silences
in
Caribbean
constitutionalism around the foundational place of
Ancestral
silences
violence and racial difference in Caribbean history and
governance.
governance
Though
differed
the
structures
amongst
the
of
colonial
colonies
and
underwent changes, structures designed to protect the
power and property of a white propertied male minority
were still in place at the beginning of the twentieth
century throughout the region. Some constitutions note
or celebrate cultural or ethnic diversity without
acknowledging their historical antecedents – racialized
political systems, the essence of which was violence.
DISCUSS: “The inclusion of the prohibition of slavery
and forced labor was a matter of open dispute at the
Ancestral
silences
Jamaica
independence constitutional conference in
1962. Many Caribbean nationalists sought to distance
themselves from slavery and the regions racialized
past in order to show maturity and readiness for selfrule. In the end, the plenary at the Jamaica
constitutional conference opted not to include a
prohibition on slavery on the grounds that its inclusion
was inappropriate given the sophistication of Jamaican
society.”
Political
traditionalism
Constitutional conflicts during the colonial
period arose from the struggles of both elite
and marginalized groups for inclusion in
governance and the body politic.
Legality and
order
The principles of order and legality – the
observance of the law – were pivotal to
colonial constitutionalism and they have left a
deep
imprint
constitutions.
on
modern
Caribbean
The Anglophone Caribbean has had a long history
of legal distinctions that have produced and
entrenched inequalities by determining who was
Smadditisation
human, the meaning of freedom and the rights to
which one was entitled. Caribbean constitutions
acknowledge the dignity and worth of the human
person as core constitutional values in their
preambles without providing a uniform platform for
vindicating that core dignity through a general
guarantee of equality.
Smadditisation - CASE
EXAMPLES
1. Status of Children
2. Women as Citizens
3. Indigenous Peoples
Each of the independent states and overseas
Caribbean
alliances
territories in the Anglophone Caribbean is
governed by its own constitution and has a
distinctive political environment. Nevertheless
substantial cross-nation and cross-territory
political and legal ties exist today that give the
modern Caribbean constitution a distinctly
regional and transnational cast.
The typical Constitution in the region contains
the following chapters or sections:
FORM AND
STRUCTURE
a)
a preamble;
b)
chapters on citizenship;
c)
a section on fundamental rights and
freedoms, called a Bill of Rights;
d)
chapters defining the powers of the
Head of State and Parliament;
e)
chapters defining the powers and
establishment of the Executive and
Judicature;
f)
chapters establishing and defining the
role and functions of the Public Service
and Judicial Commissions;
g)
chapters on finance;
h)
in addition, there is a statutory formula
giving Parliament power ‘to make laws
for peace, order and good government’
CONSTITUTIONAL
SUPREMACY
The Constitution can be defined as a body of law containing the rules which deter- mine the
structure of the State and its principal organs. It establishes the fundamental principles according
to which the State is governed. It is the authority base from which a rule of law originates and
derives its validity and further validates other sources. It may thus be described as the
grundnorm or basic norm of the society from which all other norms emanate. The Constitution is
parent law by which all other laws are measured, or the supreme law of the land. This latter
description of the Constitution is found in the celebrated case of Collymore v AG: ‘No one, not
even Parliament, can disobey the Constitution with impunity.’ The Constitution is therefore the
ultimate source of power and authority.
There would be an end to everything, if the
same man, or the same body, whether of the
SEPARATION
OF POWERS
nobles or the people, were to exercise those
three powers, that of enacting laws, that of
executing public affairs and that of trying
crimes in individual cases.
- Baron de Montesquieu, L’Esprit des Lois
Caribbean constitutions distribute and regulate
governmental
SEPARATION
OF POWERS
functions
branches or arms:
1.
legislative
2.
executive; and
3.
judicial
into
three
main
SEPARATION
OF POWERS
The primary function of the legislative
branch is to make laws for peace, order
and good government.
SEPARATION
OF POWERS
The primary responsibility of the judicial
branch is to determine, interpret and
apply the law.
The executive branch has control of the
general
conduct
of
government.
It
formulates and implements government
SEPARATION
OF POWERS
policies and carries out the functions of
government on a day to day basis. This
branch
is
responsible
for
the
maintenance of order and enforces the
law of the land.
“Under the Constitution, one branch of
government may not trespass upon the
province
SEPARATION
OF POWERS
of
any
other…[T]he
Constitution
gave
to
each
government
such
powers
arm
as
of
were
deemed to be necessary in order to
discharge the functions of a legislature,
an executive and a judiciary.”
- Lord Steyn, Anhee v DPP