Public Law

Rule of Law

THE RULE OF LAW

The rule of law as stated by Aristotle “the rule of law is preferable to the rule of any individual”.
This captures the idea that the rulers as well as the ruled should be subject to law. The
traditional approach to the rule of law is found in Dicey’s work.

Dicey: the rule of signifies three basic concepts:

1. The absence of arbitrary power – this means that no one is punishable except for a
distinct breach of the law. Dicey contrasts the rule of law with every system of
government based on the exercise of persons of authority of wide arbitrary or
discretionary powers.
2. Equality before the law – this means that no man is above the law but that every man
whatever his rank or condition is subject to the ordinary law of the realm.
3. The protection of individual rights

From a Caribbean perspective, Fiadjoe states that ‘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 phrase ‘the rule of law’ is thus a useful compendium to define the bundle of
citizen’s rights or legitimate expectations to hold the state accountable for its actions.’

The Universal Declaration on Human Rights, which was adopted by the UN General Assembly in
1948, refers to the rule of law and the Declaration of Delhi, in 1959, best expresses this
doctrine. According to this declaration, the rule of law relates to the following:

 The Legislature – the right to representative and responsible government.

 The Executive – the executive should be subject to independent judicial control.
 The Judiciary and the Legal Profession – this requires the independence of the judiciary
and an organized and autonomous legal profession.
 The Criminal process – this involves a right to a fair trial, certainty in the criminal law
and other rules of fairness including the absence of cruel punishments.
 A citizen who is wronged should have a remedy against the state.
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Commissioner of Police v. CSU [2001] 2 LRC 85

Justice Chinghengo admitted that at a philosophical level, there are different schools of thought
as to what the rule of law encompasses. However, at a practical level, the rule of law is a norm
or standard, which means that everyone must be subject to a shared set of rules that are
applied universally and even-handedly. Also, those who are affected by official action should be
able to rely on the law to protect their interests. The rule of law is therefore viewed as a
rational or societal ideal.

Rule of Law and the text of the Constitutions

In looking at the rule of law and the text of the constitution the first thing to look at is the
preamble. Jamaica does not have a preamble.

The use of the term ‘rule of law’ in the Constitution is not conclusive evidence that a jurisdiction
is governed by the rule of law. What is important is whether the principles enshrined in the
doctrine of the rule of law are actually present in that constitution.

Supremacy of the constitution: According to Alexis this is consistent with the rule of law
because it would be difficult to reconcile the omnipotence of Parliament with the rule of law.

 The Bill of Rights

Caribbean constitutions contain provision dealing with fundamental rights and freedoms. This
means that the law with clarity and certainty informs the individual of his rights and freedoms
and what limitations may be imposed on such liberties in the public interest. It also provides
individuals with the right of redress for their breach.

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  Separation of powers

DPP v. Mollison

“Whatever overlap there may be under constitutions on the Westminster model between the
exercise of executive and legislative powers, the separation between the exercise of judicial
powers on the one hand and legislative and executive powers on the other is total or effectively
so.” Such separation, based on the rule of law, was recently described by Lord Steyn as ‘a
characteristic feature of democracies’: R (Anderson) v. Secretary of State for the Home
Department [2002] 3 WLR 1800. The appellant prisoner was serving a mandatory life sentence
for murder. Both the trial judge and the Lord Chief Justice had recommended that he serve a
minimum term of 15 years to meet the requirements of retribution and general deterrence, but
the Secretary of State set the tariff at 20 years. The prisoner could not be considered by the
Parole Board for release on life licence until he had completed the tariff. The prisoner, who was
nearing the end of the judicially recommended tariff period, applied for judicial review of the
Secretary of State’s decision to increase the tariff.

The Divisional Court dismissed the application, and the Court of Appeal affirmed its decision.
On his subsequent appeal to the House of Lords, the prisoner contended that the Secretary of
State should not fix the tariff for a convicted murderer since that power was incompatible with
a person’s right, under art 6(1)b of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998), to
have his sentence imposed by an independent and impartial tribunal. In response, the
Secretary of State contended that, in fixing the tariff for a convicted murderer, he was
administering a sentence already imposed, not imposing a sentence. In the event of the
prisoner’s submission being preferred, a further issue arose as to the relief to which he was
entitled. In particular, their Lordships were required to determine whether it was possible,
under s 3c of the 1998 Act, to construe s 29 of the 1997 Act in a manner that was compatible
with the convention by reading it as precluding participation by the Secretary of State.

Held – (1) The Secretary of State should not play any part in fixing the tariff of a convicted
murderer, even if he did no more than confirm what the judges had recommended. The fixing
of such a tariff was a sentencing exercise, involving an assessment of the quantum of
punishment that the convicted murderer should undergo. The Secretary of State’s role was
objectionable because he was not independent of the executive. The complete functional
separation of the judiciary from the executive was fundamental since the rule of law
depended on it. It followed that the Secretary of State’s practice of setting the tariff for
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convicted murderers was incompatible with art 6(1). Accordingly, the appeal would be allowed,
and the issue of relief therefore arose.

(2) It was not possible to read s 29 of the 1997 Act as precluding participation by the
Secretary of State. A conclusion to the contrary would not be judicial interpretation but judicial
vandalism, giving s 29 an effect quite different from that which Parliament had intended and
going well beyond any interpretative process sanctioned by s 3 of the 1998 Act. It followed in
the instant case that the only relief that the prisoner could obtain was a declaration of
incompatibility. Accordingly, their Lordships would declare that s 29 of the 1997 Act was
incompatible with the right, under art 6 of the convention, to have a sentence imposed by an
independent and impartial tribunal in that the Secretary of State was acting so as to give effect
to s 29 when he himself decided on the minimum period that had to be served by a mandatory
life sentence prisoner before he was considered for release on life licence.

Separation of powers is consistent with the rule of law since it helps to prevent the assertion of
arbitrary power through checks and balances on each arm of government.

 Due Process Clause

Lewis v. AG of Jamaica

It was said that you couldn’t have protection of the law unless you have due process of the law.
The two terms are synonymous. The due protection of the law guaranteed in s.13 of the
Jamaican constitution, and so the people are endowed with constitutional protection to the
concept of procedural fairness.

Held - Dismissing the cross-appeal (Lord Hoffmann dissenting), that the right to the protection
of the law under section 13(a) of the Constitution and at common law was in effect the same as
an entitlement to due process of law; that, although ratified but unincorporated treaties did not
ordinarily create rights for individuals enforceable in domestic courts, when the state acceded
to such treaties and allowed individuals to petition international human rights bodies the
protection of the law conferred by section 13 entitled a petitioner to complete that procedure
and to obtain the reports of such bodies for consideration by the JPC before determination of
the application for mercy, and to a stay of execution until those reports had been received and
considered; that where a petition had been lodged with such a body execution of a sentence of
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death consequent upon a decision of the JPC made without consideration of that body's report
would therefore be unlawful; and that, since it was reasonable to allow 18 months for
applications to international human rights bodies, the lesser time limits imposed by the
Governor General in the instructions contravened the rules of natural justice and were unlawful

In Thomas v. Baptiste, Lord Thomas said due process of law is a compendious expression. It
invokes the concept of the rule of law itself and a universally accepted…. fairness. The due
process clause must be broadly interpreted and that the right to be allowed to complete a
current legal process without having it rendered nugatory by executive action before it is
completed, is part of the fundamental concept of due process. Look at s.13 of the constitution.

Facts

The applicants were charged with murder and spent a number of years in prison after being
sentenced to death. Held - Allowing the appeals in part (Lord Goff of Chieveley and Lord
Hobhouse of Woodborough dissenting), that due process of law in section 4(a) of the
Constitution incorporated the concept of procedural fairness not only in the trial but also in the
appellate process; that all litigants, including condemned men, had the general common law
right, affirmed by section 4(a), not to have the result of any pending appellate or other legal
process rendered nugatory by executive action before completion; that, although the terms of
the American Convention on Human Rights had not been incorporated into domestic
legislation, by ratifying a treaty which provided for individual access to the commission the
government had made that process for the time being part of the domestic criminal justice
system so that the due process provision in section 4(a) applied; that even if the government
were entitled to curtail such rights of access or to prescribe conditions for their exercise for the
future, section 4(a) prevented the government from doing so retrospectively so as to affect
existing applications, and, although the applicants' petitions had been lodged after publication
of the instructions, the invalidity of the instructions prevented the government from relying on
them to justify carrying out the death sentences passed on the applicants before petitions were
determined, and to do so would infringe the right to due process guaranteed by section 4( a);
and that, accordingly, their executions would be stayed until the current petitions to the
commission had been determined and the rulings of the commission and the Inter-American
Court of Human Rights had been considered by the relevant authorities of Trinidad and Tobago

 Independent Judiciary:
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This is an indispensable pre-requisite of a free society under the rule of law. Caribbean
constitutions contain provisions, which support the independence of the judiciary including
those relating to the appointment and removal of judges, the security of their tenure and the
scope of their jurisdiction.

The Rule of Law as certainty

 Overruling precedent:
Law cannot rule us unless the law is fairly stable and certain. This means that we must be able
to feel secure that the law will not change arbitrarily and without just cause. This brings into
scrutiny the rules governing the overruling of cases. But the interests of justice will always
trump the certainty of stable precedent.

The majority in the PC in Lewis v. AG had said that the need for legal certainty, demands that
they should be very reluctant to depart from recent, fully reasoned decisions unless there are
strong grounds to do so. But no less should they be prepared to do so if they are satisfied that
the earlier cases adopted a wrong approach. In such a case rigid adherence to the rule of stare
decisis is not justified. Under the concept of rule of law as certainty, Lord Hoffman in Lewis v.
AG said that if the HL or PC could overrule precedent, it would undermine the rule of law . “I
entirely accept that the Board is not, as a matter of law, bound by its previous decisions… But
the power of final interpretation of a constitution must be handled with care. If the Board feels
able to depart from a previous decision simply because its members on a given occasion have a
"doctrinal disposition to come out differently", the rule of law itself will be damaged and there
will be no stability in the administration of justice in the Caribbean.” Lord Hoffman said that
there should be certain guidelines that should be followed when a court decides to overrule a
case.

 Vagueness
The principle of legality requires that an offence against the criminal law must be defined with
sufficient clarity to enable a person to judge whether his acts or omissions will fall within it and
render him liable to prosecution. Legislation, which is hopelessly vague, must be struck down
as unconstitutional. However, the fact that a law is expressed in broad terms does not mean

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that it must be held to have failed to reach the required standard. Lord Bingham of Cornhill in
R v K said:

“The rule of law is not well served if a crime is defined in terms wide
enough to cover conduct which is not regarded as criminal and it is then left
to the prosecuting authorities to exercise a blanket discretion not to
prosecute to avoid injustice.”

“There is to be implied in [the above section] the requirement that in

criminal matters any law must be formulated with sufficient precision to
enable the citizen to regulate his conduct. So the principle of legality
applies, legislation, which is hopelessly vague must be struck down as
unconstitutional. But the precision which is needed to avoid that result will
necessarily vary according to the subject matter.” (Sabapathee v State);

Sabapathee v State
Following the arrest of the appellant’s co-defendant a search was executed at the appellant’s
house. A package was found which contained 35 sealed plastic sachets containing heroin and
50 empty plastic bags. The appellant was charged with various offences under the Dangerous
Drugs Act 1986 in respect of which it was alleged that, pursuant to section 38, it could be
reasonably inferred that he had been trafficking drugs when he committed the offences. The
co-defendant pleaded guilty to two offences of importing drugs into Mauritius. The appellant
was tried by a judge without a jury and did not give evidence in his own defence. He was
convicted of knowingly having in his possession 395 grams of heroin and wilfully offering to buy
heroin. Without giving the appellant any further opportunity to give any evidence the judge
went on to make a finding that the appellant had been engaged in trafficking drugs when he
committed the offences.

The appellant’s appeal to the Court of Appeal was dismissed and he appealed to the Privy
Council against the judges finding that he had been engaged in trafficking. Held, dismissing the
appeal – (i) there was nothing in the language of section 38(2) to indicate a parliamentary
intention to depart from the ordinary common law rule that where direct evidence was not
evident to prove any fact the court could not find that fact established by reasonable inference
from other facts which had been proved: that the standard of proof for the inference remained

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proof beyond a reasonable doubt; the trial judge and the Court of Appeal had applied the
correct standard of proof and had been satisfied beyond a reasonable doubt that the appellant
had been engaged in trafficking.

Per Lord Hope of Craighead “The essence of the complaint is that the statute has failed to
define with sufficient clarity the transactions that fall within, and those that fall outside, the
ordinary meaning of the expression [trafficking] which the section has used to describe the
nature of the activity. The principle of legality requires that an offence against the criminal law
must be defined with sufficient clarity to enable a person to judge whether his acts or omissions
will fall within it and render him liable to prosecution on the ground that they are criminal…The
fact that a law is expressed in broad terms does not mean that it must be held to have failed to
reach the required standard…the Court of Appeal put the matter correctly in its judgement in
the present case when it said: ‘As we have already adverted to, the term ‘trafficking’ cannot be
defined with any degree of precision. The multifarious forms which trafficking can take can be
measured only by the degree of human ingenuity, which, as yet, is unfathomable. No
exhaustive list of instances of trafficking can be enumerated or defined, so the legislator has left
it to the good sense of the courts to decide what amounts to trafficking on a given set of facts.’
”

Where a law creating a criminal offence is vague the citizen will not be able to know exactly
what conduct is prohibited until the judge trying the case interprets the law. The rule of law
requires obedience to the law but this necessarily implies that the law is clear.

 Retroactivity
At the time you commit an act it must have been a criminal offence. Barbados s. 18(4) states:

No person shall be held to be guilty of a criminal offence of any act or

omission that did not, at the time it took place, constitute such an
offence, and no penalty shall be imposed for any criminal offence that is
more severe in degree or nature than the most severe penalty that might
have been imposed for that offence at the time when it was committed.

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 o A retroactive law is one which makes conduct unlawful from the point in time at which
it occurred even though at that time the conduct was lawful; or imposes or increases
the penalty for such conduct.
o The provision in Barbados prohibiting retroactive laws is typical of the type of provision
found in the constitutions of the Commonwealth Caribbean. In countries, such as TT,
where a similar provision does not appear in the constitution, it is not disputed that the
prohibition against retroactive laws will be found to be comprised in the right to due
process of the law or the right to the protection of the law.
o Retroactive laws infringe the rule of law doctrine because, if permitted, citizens would
never know whether the conduct they engage in today which is not against the law,
may tomorrow be determined to be unlawful, thereby exposing them to penalties for
conduct which they could not have known was going to be made unlawful. It is
considered grossly unfair to subject people to penalties in such circumstances.

Pierson v Secretary of State for the Home Department

In the early hours of 19 September 1984 at his family’s home, a small farmhouse in North Wales
where he lived with his mother and father, he killed both his parents by shooting them more
than once at close range with a 12-bore shotgun which was kept in the house. The appellant
himself called the police. At first he made admissions consistent with his guilt; but at his trial he
said that he had no memory of the events in question. On 8 July 1985 he was convicted of both
murders. Why he killed his parents was totally unexplained. The judge imposed the mandatory
sentence of life imprisonment. In accordance with the usual practice, he wrote in confidence to
the Home Secretary, describing the crimes as horrifying but also mystifying. He expressed the
opinion that, failing some dramatic development or discovery, retribution and deterrence in the
appellant’s case would require a substantially longer than average period of custody to be
served. The present appeal is concerned with the period of time that the appellant is required
to spend in prison to meet the requirements of retribution and deterrence, before the
possibility of his release on licence can be considered.

Held - (Lord Browne-Wilkinson and Lord Lloyd of Berwick dissenting) The Home Secretary had
not been entitled to set the appellant’s tariff period at 20 years once it was shown that his
predecessor in office had proceeded on the wrong basis by taking into account aggravating
characteristics (in particular premeditation) when originally fixing the tariff, since by doing so he
had not merely left the tariff period unchanged but had in effect increased the penal element in
the appellant’s sentence. That was beyond the Home Secretary’s powers under s 35 of the
1991 Act because (per Lord Steyn and Lord Hope of Craighead) his role in fixing the tariff
period involved a decision on punishment analogous to the judicial sentencing function and he
was bound by considerations of substantive fairness to observe the same common law rule as
judges that a lawful sentence, once pronounced, could not be retrospectively increased. In
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setting or reviewing a tariff period, the Home Secretary was (per Lord Steyn) making a decision
about the punishment of the convicted man and was required to act according to the principle
of legality under which it was presumed that he would not exercise the discretion conferred on
him by Parliament by increasing a tariff period which was already fixed and thereby
retrospectively increasing a lawfully pronounced sentence; and (per Lord Hope of Craighead) it
was not open to him to increase the minimum period simply because he disagreed with the
view formed by his predecessor about the appropriate level of punishment and decided, on
further reflection, that the punishment was inadequate.

 Wide discretionary powers

Legislation sometimes vest public authorities with powers passed in broad language. Because
of this, wide discretionary powers have been held to be reviewable by the courts which require
that such powers be exercise in accordance with the intent and for the purposes of the law
which vests the power in the public official.

o Sometimes a law may vest public authorities with powers cast in broad language such
as ‘if it appears to the Minister that so & so’, or ‘if the Minister is satisfied that”. If
interpreted literally, expressions such as these could be said to give public authorities to
act on a whim or to give vent to personal preferences or prejudices. If this were so,
then the law would be administered in an arbitrary fashion and would depend upon the
predilections of the particular public officer who happens to be the repository of the
power at the time. People would never be certain as to exactly what are required of
them or as to what there entitlements might be.

o For this reason, wide discretionary powers have been held to be reviewable by the
courts, which require that such powers be exercised in accordance with the intent and
for the purposes of the law, which vests the power in the public official.

Re Manpower Citizen’s Association per Crane J – argued that the courts could not interfere with
the exercise of his discretion. However the court stated that to accept such proposition would
lead to serious inroad on the rule of law in a democratic society. “The rule of law in a
democratic society provides that a discretion is not to be exercised in a capricious and arbitrary
manner, but in a disciplined and responsible way.”

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Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd –

R v Home Secretary, ex parte Venables

The Rule of Law as a legal system that is fair and accessible

 Procedural fairness

The right to be heard and the right to an unbiased judge are indispensable to the rule of law.
Law determined by a biased judge is not rule by law at all but rule in accordance with the
judge’s prejudices. And law determined without hearing the other side is law, which represents
only half of the picture and so is incomplete and is based on an unfair foundation.

Thomas v. Baptiste – Lord Millet in looking at the concept of procedural fairness stated that in
this case because there was a breach of the rules of fairness and of natural justice the
appellants did not enjoy the protection of the law.

Jaroo v AG of TT

Shah & Lasalle v AG

 Rule of Law meaning access to the justice system

In constitutional democracies under the rule of law the courts have assumed jurisdiction to
hear and determine all disputes of a justiciable nature. Look at Gairy in terms of the types of
remedies that are available.

Lewis v AG of Jamaica

Gairy v AG

Johnson v Gore Wood & co (a firm)

R v lord Chancellor, ex parte Lightfoot

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  Remedies
Kuddus v Chief Constable [2001] 2 WLR 1789:

The plaintiff reported to the police that property had been stolen from his flat. A police
constable assured him that the matter would be investigated, but subsequently the constable
forged the plaintiff’s signature on a statement purporting to be a withdrawal by the plaintiff of
his complaint. The investigation accordingly ceased. The plaintiff brought an action against the
defendant chief officer of police on the ground of his vicarious liability for the constable’s
misfeasance in public office. He claimed damages, aggravated damages and exemplary
damages. The defendant, who admitted the forgery of the constable and that it amounted to a
misfeasance of public office, applied for the plaintiff’s claim of exemplary damages to be struck
out on the grounds that exemplary damages were not recoverable for the tort of misfeasance
in public office.

Held, allowing the appeal, Lord Hutton said “In my opinion the power to award exemplary
damages in such cases serves to uphold the rule of law because it makes it clear that the courts
will not tolerate such conduct. It serves to deter such actions in future as such awards will bring
home to officers in command of individual units that discipline must be maintained at all
times.”

R v Horseferry Road Magistrate’s Court, Ex p. Bennett [1993] 3 WLR 90:

The defendant, a citizen of New Zealand who was alleged to have committed criminal offences
in England, was traced to South Africa by the English police and forcibly returned to England.
There was no extradition treaty between the two countries, and although special arrangements
could be made in a particular case under section 15 of the Extradition Act 1989 no such
proceedings were taken. The defendant claimed he had been kidnapped from the Republic of
South Africa as a result of collusion between the South African and British police and returned
to England, where he was arrested and brought before a magistrate’s court to be committed to
the Crown Court for trial. The defendant sought an adjournment to enable him to challenge
the court’s jurisdiction. The application was refused and he was committed for trial. He sought
judicial review of the magistrate’s decision.

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The Divisional Court of the Queen’s Bench, refusing the application, held that the English court
had no power to inquire into the circumstances under which a person appearing before it had
been brought within the jurisdiction. On appeal by the defendant, it was held per Lord Bridge
of Harwich “There is, I think, no principle more basic to any proper system of law than the
maintenance of the rule of law itself. When it is shown that the law enforcement agency
responsible for bringing a prosecution has only been enabled to do so by participating in
violations of international law and of the laws of another state in order to secure the presence
of the accused within the territorial jurisdiction of the court, I think that the respect for the rule
of law demands that the court take cognisance of that circumstance…If a resident in another
country is properly extradited here, the time when the prosecution commences is the time
when the authorities here set the extradition process in motion. By parity of reasoning, if the
authorities, instead of proceeding by way of extradition, having resorted to abduction that is
the effective commencement of the prosecution process and is the illegal foundation on which
it rests.” Per Lord Lowry “…the court, in order to protect its own process from being degraded
and misused, must have the power to stay proceedings which have come before it and have
only been made possible by acts which offend the court’s conscience as being contrary to the
rule of law. Those acts by providing a morally unacceptable foundation for the exercise of
jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s
process has been abused.”

Rule of Law as the supremacy of law over government

No one is above the law

“Litigation between the citizen and the State has always been considered problematic. In
constitutional democracies under the rule of law however, the courts have assumed jurisdiction
to hear and determine all disputes of a justiciable nature. The principle of equality before the
law, where every man whatever his rank or condition is subject to the ordinary law, must result
in every official from the Prime Minister down to a junior clerk having the same responsibility
for every act done without lawful justification, as any other citizen.” Per Byron CJ Gairy v AG
(1999) 59 WIR 174,179;

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  Executive
Hochoy v. NUGE

In exercise of the powers conferred on him by s 2 of the Commission of Inquiry Ordinance Cap
7, No 2, the GG of T&T appointed a commission of inquiry to inquire into certain matters set
forth in the Gazette Extraordinary published on 26 September 1963. An action was brought by
the claimants against the defendant; the appointment was ultra vires and of no effect. The GG
argued that:

1. That as the Queen’s representative in this country he was immune from suit, and
that the court had no jurisdiction over him and
2. That the court had no jurisdiction to make the declarations sought for the reason
that O 26, r 5 of RSC was not binding on the Crown.

It was held that the courts of the country are the Queen’s Courts and not that of her
representatives and as her immunity from suits in her courts was essentially personal, the
appellants as her representative could lay no claim to such privilege. When questions arise as
to the quality and validity of an act done by the appellant, on the assumption that it is within
his powers as GG, it is within the province of the courts to determine its true character and his
competence to do it. The appellant as the person designated by the Ordinance to exercise the
statutory power to appoint a commission of inquiry was a proper defendant to answer the
challenge that the appointment made by him was ultra vires and accordingly null and void.
Wooding CJ said ‘that the Sovereign’s immunity is essentially personal there ought to be no
doubt. The courts are the Queen’s; they are not the courts of her representative, which the GG
is here.

C O Williams v. Blackman

The courts reviewed a decision of cabinet. The Cabinet was acting under a specific statutory
provision; thus they could review their actions under that provision. The executive is not
immune from review.

The applicant submitted tender which was lower than that of the only other tenderer. The
special tenders committee recommended acceptance of the applicant’s tender. The matter
was considered by cabinet and it decided under rule 148 of the Rules of 1971 to award the
contract to the other tenderer, recommended by the Minister of Transport and Works, who

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was a member of the cabinet. The applicant applied for judicial review. On appeal to the Privy
Council it was held that -

1. Allowing the appeal against the AG, that in deciding to accept the tender of the other
tenderer the cabinet had not been exercising its prerogative power but the specific
statutory function conferred on it by rule 148 of the Rules of 1971; that the exercise of
that function was an ‘administrative act’ by the cabinet within s 2 of the Administrative
Justice Act since even if not collectively the act of a minister it was the act of an ‘other
authority of the Government of Barbados’ for the purposes of that section and was
therefore subject to judicial review to the same extent and on the same grounds as it
would have been had it been conferred on a minister instead of on the cabinet.

 Judiciary
Maharaj v. AG of TT – the courts reviewed the actions of a judge (Remember Fundamental
Right Lecture).

Rees v Crane:

The respondent was a judge of the High Court of TT and held office subject to the fundamental
right to the protection of the law recognized by s4 (b) of the Constitution of the Republic of TT
and he could only be removed from office for inability to perform whether from infirmity of
mind or body or any other cause or for misbehaviour in accordance with the constitution. After
receiving complaints about the respondent the CJ of TT decided not to include him in the roster
of judges who were to sit in court for the following term. The Chief Justice then instigated
proceedings for the respondent to be removed from office without the respondent being aware
of such proceedings. The respondent applied for judicial review.

The Court of Appeal of TT allowed the appeal by a majority and quashed the Chief Justice’s
decision to exclude the respondent from the roster. The Privy Council ruled that:

1. Although the CJ of TT as head of judicial administration there had power to organise the
procedures and sittings of the courts, including arranging that for a temporary period a
particular judge did not sit in a court, a judge may only be suspended or removed from
office in accordance with the procedure prescribed by s137; that the decision of the CJ
to exclude the defendant from the roster, with no indication as to when he would sit in
court again constituted an indefinite suspension which he had no power to impose and
which could not be corrected retrospectively by the order of suspension made by the
President under s.137(4).

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 2. The commission had not treated the respondent fairly in failing to inform him at that
stage of the allegations made against him or to give him a chance to reply to them in
such a way as was appropriate, albeit not necessarily by an oral hearing; and that
accordingly the commission had acted in breach of the principles of natural justice.

 Legislature

Hinds v R [1977] AC 195

Collymore v AG (1967) 12 WIR 5:

 Ouster Clauses
There is an argument that they are inconsistent with the rule of law.

Re Alva Bain (unreported) HC, T&T (no 3260 of 1987) AKF 125:

The case law demonstrates that no matter the high office held by anyone they are bound to
comply with the law. However, there are some instances where the law itself immunizes public
authorities from supervision by the courts. When courts abide by ouster clauses, is this an
exception to the rule of law or an application of the doctrine?

 The legality of state action

Liversdige v Anderson [1941] 3 All ER 338, 361:

R v Health Secretary, exp. Imperial Tobacco Ltd [2001] 1 WLR 127, 142:

R v Home Secretary, exp. Muhoyaji [1991] 3 WLR 442, 449:

An important distinguishing feature of our legal system is the requirement that the onus is on
public authorities to demonstrate the legality of their actions. The practical consequence of
this assumption is that in any case, for example, where a person’s liberty is taken away, the
onus is on the state to establish the legal authority by which its agents have acted. Illegality is
assumed until the contrary is proved.
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 Rule of Law as Equality

Everyone is entitled to the protection of the law

 Insurrectionists
Even though they act outside the law, they are still entitled to equality in the law as no one is
below the law.

Lennox Phillips v DPP (PC) [1992] 2 WLR 211:

During an insurrection in Trinidad by a group of which the 114 applicants were members, the
Prime Minister, certain Members of Parliament and other persons were held captive. In order
to secure their release the Acting President granted a pardon in the form of a general amnesty
to all those involved in acts of insurrection. The captives were eventually released and the
applicants surrendered. They were arrested and detained in custody. They were arrested and
detained in custody. They were charged with treason, murder and other offences alleged to
have been committed while they were involved in the insurrection. They applied to the High
Court alleging that since they were the beneficiaries of a valid pardon their detention and
prosecution for offences in respect of which the pardon had been granted infringed their right
to liberty and security of the person and the right not to be deprived thereof except by due
process of law afforded by section 4(a) and their right under section 4(b) of the constitution to
the protection of the law. Eight of the applicants also applied to the High Court for leave to
issue a writ of habeas corpus directing the Commissioner of Prisons to show why they should
not be released immediately, alleging that by reason of the pardon their detention was illegal.

The Court refused both motions; the Court of Appeal upheld this. The Privy Council held –

1. The applicants had established that they were the beneficiaries of a valid pardon which
would render their detention and imprisonment on charges relating to offences covered
thereby unlawful, and it was for the Commissioner of Prisons and the AG to justify their
detention; that, accordingly, the applicants were entitled to a writ of habeas corpus as of
right so that the lawfulness of their imprisonment could be immediately determined, and at
that hearing the court would have jurisdiction to inquire into the validity of the pardon even
though, of the applicants were not released, they would be entitled under s32 of the
Criminal Procedure Act to assert the pardon again as a special plea in bar to the indictment
when they were arraigned; and that therefore all the applicants would be granted leave to
issue a writ of habeas corpus. Lord Ackner said “their Lordships have no hesitation in saying
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 that it is in the overall interest of justice that there should be the earliest possible decision
as to the validity of the pardon, if it is to be challenged. If the pardon remains unchallenged
or is held to be valid, the unlawful imprisonment of the applicants will then cease…A prima
facie case having been established that the applicants were unlawfully detained, it is clearly
for the respondents to make a return justifying the detention.”

 Convicted Killers

Pratt & Morgan v AG of Jamaica (PC) (1993) 43 WIR 340:

The appellants were convicted in 1979 of a murder committed in 1977 (since which date they
had been detained in custody). Their application for leave to appeal was rejected in 1980 and
the reasons given in 1984. Special leave to appeal to the Privy Council was refused in 1986. In
1991 the appellants instituted proceedings under section 25 of the Constitution of Jamaica
claiming that their continued detention under sentence of death contravened section 17(1)- No
person shall be subjected to torture or to inhuman or degrading punishment or other
treatment. These proceedings were dismissed in the Supreme Court and the Court of Appeal
dismissed their appeal.

Held, advising that the appeal be allowed, (i) that section 17(2) authorised the passing of a
judicial sentence of a description of punishment which had been lawful in Jamaica before
Independence but it was not concerned with the act of the executive in carrying out the
punishment; accordingly, section 17(2) did not itself preclude a finding that the circumstances
in which the executive intended to carry out a sentence were in breach of section 17(1). (ii)
That the execution of the death sentence after unconscionable delay would constitute a
contravention of section 17(1), except where the delay had been the result of some fault of the
accused, e.g. an escape from custody or the frivolous or time-wasting resort to legal procedures
such as would amount to an abuse of process; but delay attributable to the accused exploring
legitimate avenues of appeal did not fall within such exception. (iii) That to execute the
appellants after holding them in custody and under sentence of death for nearly fourteen years
would be inhuman and in breach of section 17(1) and their sentence should be commuted to
life imprisonment.

Per curiam. If capital punishment is to be retained it must be carried out with all possible
expedition. Capital appeals must be expedited and legal aid allocated at an early stage.
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Although no attempt is made to set a rigid timetable, the entire domestic appeal process should
be completed within approximately two years. If in any case execution is to take place more
than five years after sentence there will be strong grounds for believing that the delay is such as
to constitute ‘inhuman or degrading punishment or other treatment’.

Catholic Commission for Justice and Peace in Zimbabwe v AG (1993) 2 LRC 279, 314

In this case, which predated Pratt and Morgan, the Zimbabwean Supreme Court held that a
long delayed execution could violate the right not to be subjected to cruel and unusual
treatment or punishment. Per Gubbay CJ “Because retribution has no place in the scheme of
civilised jurisprudence, one cannot turn a deaf ear to the plea made for the enforcement of
constitutional rights. Humaneness and dignity of the individual are the hallmarks of civilised
laws. Justice must be done dispassionately and in accordance with constitutional mandates.
The question is not whether this court condones the evils committed by the four condemned
prisoners, for certainly it does not. It is whether the acute mental suffering and brooding
horror of being hanged which has haunted them in their condemned cells over the lapse of
time since the passing of the sentence of death, is consistent with the guarantee against
inhuman or degrading punishment or treatment.”

One of the more challenging but enduring aspects of the rule of law is the insistence that
even those who flout the law or seek to undermine or overthrow the very foundations of the
legal system are nevertheless entitled to the law’s protection.

 Equality before the law

Fitzpatrick v Sterling Housing Association [1998] 2 WLR 225, 256:

Arthur JS Hall v Simons [200] 3 WLR 543, 560:

The law does not rule unless everyone in similar circumstances are treated the same. Thus
lawyers should be subject to claims in negligence just as engineers or doctors are. And all
families are to be treated the same even if the partners are the same sex.

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