LEGISLATION AND CONSTITUTION

CHAPTER 7 - THE WRITTEN CONSTITUTION AS A LEGAL SOURCE - B. ANTOINE

FIRST TO NOTE:

1. Constitution gives Parliament authority to make laws

2. Parliament drafts legislation

3. Legislation scrutinised by courts

4. Court takes purposive/presumptive approach to saved law or reasonably justifiable to new law
(constitution)

5. Constitution gives court power to scrutinise legislation

6. Constitution also gives Parliament power to confer (grant) or delegate (authority) to make laws
(separation of powers doctrine)

Importance of Constitution

1. Constitution is the founding document confirming the independent status of the Commonwealth
Caribbean States.

Constitution solidifies the rights, democracy and nationhood and allows for interprative expansion.

The constitution also gives life to judicial review (subjects from executive and legislative looked over by
judiciary) enabling the concept of ultra vires, "beyond your powers" (out of your authority/power), to
flourish.

2. Important legal principle because of adherence (action of continuing to obey) the theory of
constitution supremacy (Constitution reigns over all legal principles eg, legislation, case law).

DEFINITION OF CONSTITUTION:

The constitution can be defined as a body of law containing the rules which determine the structure of
the state and its principle organs.

Authority base to which a rule of law is developed. Described as grundnorm (ultimate principle).
FUNCTIONS OF CONSTITUTION:

- defines citizens' rights and the shape of legal and political system. eg, principles of democracy.

- Lays down mandatory procedures for government. procedural fairness.

- definition of territory of the state

- creation and establishment of state institutions and the distribution of the functions of the state. eg,
provisions are made to establish the Public Service Comission to appoint, discipline, transfer and fire
employees of the State.

- granting authority (to parliament) to make laws

- furnishing/provide legitimacy to the state through the existence of an independent body of law which
regulates the state.

Structure of Constitution:

- preamble (intro)

- Chapters on citizenship

- section on fundamental rights and freedoms (Bill of Rights)

- Chapters defining powers of HoS and Parliament

- Chapters establishing and defining the role and functions of the Public Service Judicial Commissions

- Chapters on finance

- Statutory formula giving Parliament power to make laws for peace, order and good government.

SAVING LAW CLAUSES (existing law)

- attempts to preserve PRE-INDEPENDENCE LAW often at the expense of human right provisions with
the result that the constitution is viewed as solidifying existing rights and NOT creating new ones. (only
present in older constitutions)
Types:

- partial/specific which speaks to a certain right - maintain a law that may actually be against
constitution

- Modification clause - alows existing law to be changed to bring into conformity (change to match) with
constitution. (Trinidad)

- Full or general (not common)

Has saving law clauses undermine the creative force of Caribbean Constitutions? (saving law clauses
displaying that Caribbean constitutions are not unique)

Constitutional rights protected are only the pre-existing ones. (conflict between written constitutional
rights and pre-existing ones)

Saving law clauses inclusion was necessary to ensure that there was coherence (logical and consistent)
and certainty in the transition from colony to independent.

ROLE OF SAVING CLAUSE;

- ensures continuity in the transition from colony the independant state

- Once the new legal tradition was cemented (in place), the need for such clauses woykd be diminished.

Court Interpretation of Constitution -

Court should interpret Constitution in a broad and purposive manner.

Liberal Interpretation - freedom to express an opinion on?

REVERSING SAVING CLAUSE - change constitution fully

DIRECTIONS IN CONSTITUTIONAL JURISPRUDENCE:

- Constitutional protection against violations of rights only applies as between citizens ajd State (NO
HORIZONTAL APPLICATION!)
In the obsence of ordinary legislation to address discrimination, this results i a significant gap in law

DUE PROCESS OR RULE OF LAW

- source for procedural fairness/ protection of the law

- REAFFIRMED in the Constitution (NOT ORIGINATE)

- Principles that make up every character of the law and legal system.

(compedious - presenting essential facts in a concise way)

Due process is not sufficient to disrupt the separation of powers (Executive function - treaty making,
Laws and legislation - Pariament). Due process

PREAMBLE (Intro)

- If a right is contained in the introductory clause then it is considered non-justiciable (Not capable of
being decided by court of Justice/legal principles) and non-enforceable (cannot be enforced).

PC and CCJ have treated the due process provisions in Intro to the Bill of Rights as justiciable but aids in
the protection of human rights.

Constitution embodies the 'separation of powers' priciple.

ENTRENCHMENT OF CONSTITUTIONAL PROVISIONS

- certain provisions may not be altered except by a special majority of Parliament or referendum

The constitution contributed to the development of the legal system and the role in testing the validity
of other laws and egal sources.

Testing of other laws and legal systems is carried out by the process of judicial review

HIGH COURT ASSIGNED THE DUTY OF JUDICIAL REVIEW

(intra vires - inside the power), (ultra vires - beyond the power)

Legislation that does not conform to the general prnciples protected by the constitution can be declared
null nd void and struck off

CONSTITUTION LECTURE

- Written constitution is under civil legal system (based on codes, French revolution, etc)

- Written constitution is NOT PART OF COMMON LAW.

- CAME IN AFTER INDEPENDENCE

- Parliament can have laws contrary to the constitution

- Rights in constitution regulate rights between the INDIVUADAL and the STATE (vertical relationship).

- Traditional means narrow approach (Jones v AG)

- NOW broader interpretation way/ inn depth analysis.

- the constitution is a living organism and these saving law clause don't really mesh well as the society
values changes with time.

INTERPRETING THE CONSTITUTION:

1. presumptive:

- presumes that legislation is constitutional (problematic for saving clause) - can challenge is the court
being hesitant to declare it being unconstitutional. (assuming this law is in place that it is constitutional)

- does not mean legislation cannot be subsequently unconstitutional

- court will proceed with caution where legislation is challenged as being unconstitutional.

eg, Nasralla v DPP

2. Purposive:

- court to interpret constitution in a way that recognises the objectives and aims of the constitution

- resulted in liberal interpretations of the constitution (not as constricted by law).

Saved law approach:

if the law is saved, think about:

a) presumptive approach (hesitancy)

b) purposive approach (not constricted. what is the constitution trying to achieve/rights being affected/
is law serving the purpose of constitution

Not saved:

a) whether law can be maintained as being reasonably justifiable.

Constitution Relationship:

- constitution gives parliament ability to legislate

- may save pre-independence laws to varying extents

- Parliment can legislate in contravention (act violating legal condition) of constitution if spcial majority
obtained (change human rights in constitution)

- courts determine whether legislation is constitutional EVEN WHEN 3/5 majority obtained (against
human rights constitution)

- Legislation to stand. (sent to courts to determine if it reasonably justifiable in society even if it gets a
3/5 majority from Parliament. (Parliament gives court power to scrutinise)

CHAPTER 13: LEGISLATION AS A SOURCE OF LAW - B. ANTOINE

IMPORTANCE:

More codification (written) is taking place in the commonwealth caribbean (merging of civil and
common legal systems)

Constitution is PART of the legislative process.

Legislation is closely associated with civil law traditions and the civilisation of Rome and Greece

The Code of Manu:

Written in verse and divided into 12 chapters. In most parts, the rules are so clearly and concisely stated
that nothing can be gained by attempting to summarise or condense
NATURE AND ROLE OF LEGISLATION

Both common law and legislation embody legal rules which derive authority from legitimate sources.
Common Law - Courts, Legislation - parliament.

Difference:

- legislation derives from DELIBERATE law making

- Directness of legislative process

Difference between legislation and custom (According to FULLER):

- Legislation is deliberately made while 'custom having no author, simply grows or develops through
time'

- Custom expresses themselves in conduct while legislation expresses itself in a succession of words.

Difference between legislation and Common law/Equity

- Common law/Equity relies on precedent therefore making them limited (they can only develop new
principlees by building on old/manipulating case law)

- Legislation is creative and dynamic (constant change). No need to form to existing principles. can make
radical and new principles of law.

Legislation aids in law reform. Crabbe "legislation is an instrument of change and innovation in a
country"

FUNCTIONS OF LEGISLATION:

- Revision - The revision of substantive rules of the common law may occur when the law has

become stale or incapable of adaptation, or when an unpopular decision is made

by the courts. Overcome restrictive way precedent works (creating change).

- Consolidation of eneactments - Legislation can be used to clarify and simplify the status of law (DOES
NOT ALTER SUBSTANCE. ONLY FORM). 3 ways to effect consolidation:

1. Pure consolidation or re-enactment

2. making corrections and minor improvements

3. making amendments.

(only applies to existing law)

- Codificaton - can make case law, statute. (simplify and clarify). Where ares of Consolidation and
Codification occur is known as CODE. Principle from common law put into legislation

- Collection of revenue or monetary control - certain statutes have a function of regulating fiscal
concerns or the collection of revenue.

- Implementation of treaties - Legislation regulates treaty obligations/passes locally. This statute

process is know as 'incorporation'. Meant to standardise international law.

- Social Legislation - day to day admin of country. delegate to subordinate bodies. eg, immigration
regulations

- Public Policy - enacted in public interest to satusfy demands of public

- Response to pressure groups - egs, environmental legislation or human rights law

TYPES:

- Acts of Parliament (statutes. pre-independence, Ordinance)

- Delegated legislation

- autonomic legislation

- SPECIAL FORM - Orders in Council

Orders in council made under prerogative and Prerogative is the residue of the special common law
power given to the Crown or Head of State. (unheard of in independent countries). Mainly used in
relation to the armed forces, states of emergency and the Civil Service.

ACTS OF PARLIAMENT

- Private acts - private legislation is that proposed by a corporation, company or private organisation. It
will affect only the proposer or sponsor of the Act

- Public Acts - are those statutes with which we are more familiar. A public statute is proposed by the
people through its representatives in Parliament. It will affect the entire nation.

- AoP have a long name (official title) and short name.

- Following is the date of assent (approval) by HoS

- Before enactment, the legislation is called a bill.

For a bill to be an act, must have the foll:

- Gone through Lower House and Upper House (Senate/ non elected members) of parliament.

- Once bill is drafted, endorsed (approval) from one house and sent to the other. must be reviewed
minimum of 3 times

- After act is passed, must be approved by HoS.

DELEGATED OR SUBSIDIARY LEGISLATION

It is the body of legal rules created by subordinate or statutory bodies which have specific power to do
so because Parliament has delegated that power to them. Creation of substance of the legislation
remains with Parliament. (Indirect source of law).

- More scrutiny than AoP because main person to make law is Parliament, Not subordinate statutory
bodies.

eg. Regulations, rules, orders.

BYLAWS

rules made by local authority acting on behalf of government. Binding for persons within that scope.

FUNCTIONS OF DELEGATED LEGISLATION:

- Administrative efficiency

- Speed

- Technicality

- Special Knowledge

- Flexibility

- Bulk

- Future Developments

AUTONOMIC LEGISLATION
Type of delegated legislation - main difference is that an autonomous body has independent power to
legislate for its members and in some cases, members of public. Power sanctioned by Parliament.

eg, Bar Councils, Chambers of Commerce, Churches

eg, Gatherer v Gomez - Parliament granted permission to anglican church Act to settle relationship
between church and state.

CONTROLLING ACTS OF PARLIAMENT

Unlike UK AoP, Caribbean AoP are open to scrutiny from judicial review principle. This allows legislation
to be examined by courts to see if the principles match constitution.

PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION

Rationale behind control - legislative making authority is given to Parliament (persons elected to
represent the people.

TYPES:

(a) laying – this means merely presenting the document to Parliament, with no discussion or explicit
approval of it. Instead, approval is implied;

(b) laying, subject to affirmative resolution – in this process, after the laying of the legislation before
Parliament, an affirmative vote must be obtained in order for the legislation to be passed;

(c) laying, subject to a negative resolution – in this situation, the legislation must be laid before
Parliament and if, after a certain number of days, there is no objection to it, it is passed. It must be laid
within a stated period (for example, 40 days) after
it is created, or else it becomes void;

(d) publication – the legislation must be published for it to become law. It will usually be published in the
Government Gazette.

The use of judicial mechanisms to control delegated legislation under the principle of judicial review is
the subject of administrative law. We can separate this judicial process into procedural ultra vires and
substantive ultra vires

PROCEDURAL ULTRA VIRES

ultra vires - done beyong ones legal power.

Procedural ultra vires concerns the examination of the process used to create the legislation to
determine whether it was appropriate.

Types of pre-conditions:

1. Mandatory

2. Directory - regulations not void (legally binding)

Subsidiary legislation will also be declared ultra vires if it goes against certain fundamental presumptions
in law.

Thus delegated or subsidiary legislation must pass a threefold test:

(a) it must conform to the intention, purpose and jurisdiction of the parent Act;

(b) in its creation, the appropriate procedural safeguards must be adhered to; and

(c) it must not violate constitutional norms nor other legal norms such as public policy reasonableness,
rationality or justice.
CRITICISMS OF DELEGATED LEGISLATION

- Undemocratic (not created by people elected)

- Delegated authorities would subdelegate (transfer authority) their functions on others.

- Keep track of subsidiary legislation is time consuming.

- Control against abuse of power would not be efficient.

- Judicial reviews may not be carried out

APPROACHES TO INTERPRETING CONSTITUTIONS:

1. Application of presumptions (intra vires [inside the powers/have authority]) - courts proceed
carefully when legislation is challenged on CONSTITUTUIONAL grounds. PRESUMPTION CAN MEAN:

- legislation is not prime facie (first impression violate or hinder right in issue.

2. Need for a purposive approach to construction

3. need to treat with saving and existing law provisions

4. recognition of influences of international law on Bill of Rights

5. Special treatment afforded provisions found solely in preamble (intro)

REBUT PRESUMPTION

in order to rebut the presumption their Lordships would have to be satisfied that no reasonable
member of the Parliament who understood correctly the meaning of the relevant provisions of the
Constitution could have supposed that [the law enacted] was reasonably required for the protection of
any of the interests referred to, or in other

words, that Parliament was either acting in bad faith, or had misinterpreted the provision of the
Constitution under which it purported to act.

Hinds v R

LECTURE

Common law is development of law through the cases/courts. Judges/ common law interpret legislation
(part of body of precedent).

Statutory law is intentionally drafted by Parliament or other bodies given the authority to.
If law is contrary to the rights in the constitution, it can be challenged.

CONSTITUTION DEALS WITH INDEPENDENCE.

Acts that infringe rights in constitution need a 3/5s majority.

ORDER:

RELATIONSHIP:

STATUTE MADE BY PARLIAMENT.

THIS CONSISTS OF:

- PUBLIC ACTS EG, QUARATINE AMENDMENT

- PRIVATE ACT EG, SEVENTH DAY ADVENTIST ACT

PARLIAMENT GIVES BODY OF POWER, AUTHORITY TO CREATE/AMEND ACTS.

(DELEGATED) EG, PUBLIC ACTS

AUTONOMIC - PARLIAMENT GIVES A BODY OF AUTHORITY, POWER TO GOVERN ITSELF. EG, PRIVATE
ACTS