What are the bases for judicial review of legislation in the Independent Commonwealth Caribbean?

Judicial review, in the context of constitutional law, refers to the process by which courts may review Acts of Parliament to ensure that they are in conformity with the Constitution. The underlying foundation for the existence of judicial review is the supremacy of the Constitution. Professor Carnegie noted that all Caribbean Commonwealth constitutions with the exception of Trinidad and Tobago contain a supreme law clause, making laws inconsistent therewith void. Section 2 of the Jamaican Constitution states that subject to the provisions of sections 49 and 50 of the Constitution, if any other law is inconsistent with the Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. The presence of these ouster clauses is another basis as it implies that there is a general jurisdiction for the Courts to review all of the Constitution except the actions of the executive e.g. the actions of the legislature. Acts of Parliament may also be subject to judicial review on the bases that (i) they are in breach of the separation of powers doctrine (ii) they violate the fundamental rights provisions and (iii) they seek to amend the Constitution without following the procedure stipulated by the Constitution to change the given provision. (i) (ii) Look at each basis in separately. Re. Fundamental Rights provisions, sections 25 and 26 of the Jamaican Constitution confer on the Supreme Court the power to entertain any claim that there has been any contravention of the fundamental rights provisions. Basis of Judicial Relevant Act Review Separation of Juvenile Act 1951 Powers Issue
Act gave G.G as Exec. Judicial power for convicted juvenile to be detained at his pleasure

Case DPP v Mollison

Browne v R Hinds v R

Separation of Powers Separation of Powers Separation of Powers Separation of Powers

Offences Against the Person Act Gave judicial power to a Gun Court Act 1974 Review Board made up mainly of non-judicial members Gave DPP (exec member) sentencing power by making him choose method of trial in individual cases. Gave executive power to legislate Arrangements in the Act for the trust property infringed the protection against the deprivation of property outlined by article 27 of the Constitution.

Ali v R

Dangerous Drugs Act

Astaphan & Comptroller of Customs Bahamas Methodist v Symonette

Fundamental Rights Methodist Church of Provisions the Bahamas Act 1993

Collymore v AG

Appellants held that the Fundamental Rights Industrial Provisions Stabilisation Act 1965 Act abrogated the right of

Reyes v R

Fundamental Rights Criminal Code of Provisions Belize

Jaundoo v AG

Fundamental Rights Govt. proposed to Provisions construct a new road

Watson v R

Fundamental Rights Offences Against the Provisions Person (Amendment) Act 1992

Bahamas Methodist v Symonette

Improper procedure for amending constitution / for passing laws

Methodist Church of the Bahamas Act 1993 Bill of 1958

Bribery Improper procedure Commissioner v for amending

free collective bargaining and the right to strike. PC held that this was not so. The Act infringed his right not to be subjected to inhumane and degrading punishment contrary to section 7 of Belize Constitution. Appeal allowed. Appellant felt that this construction would be in contravention of her fundamental rights under Article 8 (1) of the Constitution of Guyana. PC allowed her appeal PC held that infringed upon appellants constitutional right not to be subjected to inhuman or degrading punishment, by its imposition of the death penalty. Act introduced in the House of Assembly as a private bill before it got the GGs assent, contrary to article 59 (1) of the Constitution. PC held that the Bill is unconstitutional as it

Ranasinghe

constitution / for passing laws Improper procedure for amending constitution / for passing laws Improper procedure for amending constitution / for passing laws Act 15 of 1978

AG v Mcleod

Mitchell v DPP

WI Associated States Order 1967

Independent Jamaica Council for Human Rights v Marshall

Improper procedure for amending constitution / for passing laws

Caribbean Court of Justice Act

sought to amend the constitution of Ceylon w/out presenting the speakers certificate. PC held that Act which sought to amend section 49 of the T&T constitution was invalid as it did not have support of the majority of House of Representatives needed. Whether abolition of right of appeal to PC was effective by Act passed. PC held that it was because it was passed by a lawful Parliament in accordance with the procedure required for the amendment of that section. PC held that Parliament sought to replace PC with CCJ without following the procedure outlined in the Constitution for the amendment of entrenched provisions.

{Conclude}