The use of the term “Rule of Law” 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 present. They are:

1. Supremacy of the Constitution

The Caribbean constitutions are Supreme 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. It is arguable however, because in the UK
parliament is Supreme.

2. The Presence of a Bill of Rights

Caribbean Constitutions contain provisions dealing with the 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. It also provides individuals with the right of redress for their breach.

In Lassalle v AG
The fundamental rights and freedoms are previously existing rights, for the most part
derived from the common law, the continuation of which is sought to be protected by
the Constitution for the purpose of securing the rule of Law

3. Separation of Powers

The separation of powers is consistent with the rule of law because it helps to prevent
the assertion of arbitrary power through checks and balances on each arm of
government. (Dicey’s first rule)

DPP v Mollison
whatever overlap there may be under the Westminster constitutions there may be
between the executive and Legislature, the separation between the exercise of judicial
powers on the one hand and legislative and executive powers on the other hand 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”

4. Due Process Clause

The importance of the due process clause can be adequately summed up in :

Lewis v. AG of Jamaica
You cannot have protection of the law unless you enjoy due process of the law.
The two terms are synonymous. The protection of the due process guaranteed in sec
13 of the Jamaican Constitution and so the people of Jamaica are endowed with the
Constitutional protection to the concept of procedural fairness.
Thomas v. Baptiste
The applicants were charged with murder. The first applicant had been in custody for
two years and seven months since his conviction, making a total of five yrs the other
had been in prison for seven. They were kept in conditions contrary to the prisons
regulations. The applied for a declaration that execution of the death sentence would
contravene his right not to be deprived of life except by due process of law guaranteed
him would be cruel and unusual punishment

Held
The due process of law in section 4(a) of the constitution incorporated the concept of
procedural fairness not only in the trial but in the appellate process

Due process of law protected the subject from absolute monarchy and the arbitrary
exercise of executive power. The due process clause excludes legislative as well as
executive interference in the judicial process

The clause also gives constitutional protection to the concept of procedural fairness.
Whatever disagreement there may be as to the scope of the phrase there is no doubt
that it embraces the fundamental concept of a fair trail, with the opportunity to be
heard”

Shah & Lasalle v AG

“Due process of law” is a compendious expression in, it invokes the concept of the
rule of law itself and the universally accepted standards of justice observed by
civilised nations…The clause thus gives constitutional protection to procedural
fairness’

the due process clause must be interpreted broadly and 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.
N.B.
Thomas v Baptiste

5. An independent Judiciary
An independent judiciary is an indispensable prerequisite of a free society under the
rule of law. Caribbean constitutions contain provisions which support the
independence of the judiciary including those dealing with
 the appointment and removal processes of judges,
 security of their tenure, and
 the scope of their jurisdiction.

THE RULE OF LAW AS CERTAINTY

The majority of the PC had stated that the need for legal certainty requires that thgey
should not be able to depart from a recent, fully reasoned decision unless there are
strong reasons to do so. But nonetheless they should not be reluctant to do so if they
are satisfied that earlier cases to a wrong approach. Rigid adherence to stare decisis
would not be advisable.

INCLUDE DISSENTING JUDGEMENT BY LORD HOFFMAN

 Vagueness
The principle of legality requires that an offence be defined with sufficient clarity as
to enable the person to judge whether his acts or omissions will fall within it and
render him liable to prosecution. Legislation that is hopelessly vague must be struck
down as unconstitutional. But the mere fact that a law is expressed in broad terms
does not mean it must be held to have failed to reach the required standard.

i) Unclear statutory prohibitions

Sabapathee v State

Law must be formulated with sufficient precision to enable the citizen to regulate his
conduct. So the principle of legality applies, legislation that is hopelessly vague must
be struck down as unconstitutional. But the precision which is needed to avoid that
result will necessarily vary according to subject matter

R v. K
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.

Merkur Island Corporation v. Laughton

The efficacy and maintenance of the rule of law, which is the foundation of any
parliamentary democracy, has at least two pre-requistes.
First the people must understand that it is in their interests that they
should live their lives…in accordance with the rules and all the rules.
Second that they must know what those rules are.

N.B.
The rule of law requires obedience to the law but this necessarily implies that the
law is clear.

Retroactivity

A retroactive law is one which makes conduct unlawful from the point in time it
occurred even though at that time the conduct was lawful; or it imposes or increases
penalty for such conduct.

Barbados s.18(4)
No person shall be held guilty of a criminal offense on accountof any act or omission
that did not, at the time it took place constitute an offence, and no penalty shall be
imposed for any criminal offense that is more severe in degree or nature than the most
severe penalty that might have been imposed for that offense at the time when it was
committed.

N.B. This provision is typical of those found in other commonwealth jurisdiction

Retroactive rules infringe on the 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.

Wide discretionary powers

Sometimes a law may vest public authorities with powers cast in broad language such
as “if it appears to the Minister that so & so” if the Minister is satisfied that is satisfied
that. If interpreted literally, expressions such as these would give the public authorities
the power to act on a whim or to give vent to personal preferences or prejudices.

If this were so, 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 is required of them or as to what their entitlements might be.

For this reason the wide and discretionary powers have been held to be review able by
the courts that 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 office.

Re Manpower Citizen’s Association (1964)

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.

R v. Environment Sec. Ex. P. Spath Holme Ltd.

Statutory power conferred for public purposes is conferred as it were upon trust, not
absolutely- that is to say, it can validly be used only in the right and proper way which
parliament, when conferring it, presumed it to have been intended.

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 a rule by law at all but is a rule in
accordance with the judges prejudices.

Thomas v. Baptiste
The due process of law in section 4(a) of the constitution incorporated the concept of
procedural fairness not only in the trial but in the appellate process
Shah & Lasalle v AG
“Due process of law” is a compendious expression in, it invokes the concept of the
rule of law itself and the universally accepted standards of justice observed by
civilised nations…The clause thus gives constitutional protection to procedural
fairness’

Rule of Law meaning access to the justice system

Lewis v. AG of Jamaica
You cannot have protection of the law unless you enjoy due process of the law.
The two terms are synonymous. The protection of the due process guaranteed in sec
13 of the Jamaican Constitution and so the people of Jamaica are endowed with the
Constitutional protection to the concept of procedural fairness.

Gairy v AG
In constitutional democracies under the rule of law however, courts have assumed
jurisdiction to hear and determine all disputes of a justiciable nature.

The legal principles empowering the court to issue injuctive and mandatory orders
against the executive reflect the adherence of the legislature to the concept of
implementing the rule of law.

Johnson v Gore Wood & Co. (a Firm) [2001]

The rule of law depends upon the existence and availability of courts and tribunals to
which citizens may resort for the determination of disputes between them.

Rv Lord Chancellor, ex parte Lightfoot [1999]

Access to justice is a fundamental requirement of the rule of law. Its imperative rests
upon the need for objective and independent adjudication of disputes between man
and state

RULE OF LAW AS THE SUPREMACY OF LAW OVER

GOVT

Dicey’s second principle states that no man is above the law. Regardless of seniority a
man is subject to the law.

Gairy v AG
‘…the principle of equality before the law, where evry man whatever his rank or
condition is subject to the ordinary law, must result in every official from the PM to
the junior clerk having the same responsibility for every act done without lawful
justification.
EXECUTIVE
Hochoy v NUGE
The courts of the country are the Queen’s courts and not that of her representatives
and as her immunity from her courts was essentially personal, the appellant as her rep.
Could lay no claim to such a privilege.

C O Williams v Blackman
The court held: their lordships can see no reason inprinciple why the cabinet’s
exercise of the function should not be subject to judicial review to the same extent and
on the same grounds as the minister’s would have been.

JUDICIARY
Rees v Crane
Pg 6
Maharaj v AG

LEGISLATURE
Hinds v R

Collymore v AG