Judicial Attitudes to Commonwealth Caribbean Constitutions
![handle is hein.journals/comlwr20 and id is 156 raw text is: ANGLO-AMERICAN LA WREVIEW
JUDICIAL ATITUDES TO COMMONWEALTH
CARIBBEAN CONSTITUTIONS
By ALBERT K. FIADJOE
Arguments over judicial attitudes tend to oscillate between the
philosophies of conservative formalism and liberal activism and the
experience of the Caribbean courts has been no different. Indeed, by its
very nature, the common law - in which the Judges have been trained - has
a tendency to formalize and one of the dilemmas facing courts generally is
whether to uphold formalism over justice. In the past, Commonwealth
Caribbean courts have tended to be excessively formalistic and unduly
restrictive in their interpretative constitutional functions.1 However, it
would seem to be the case that since the landmark decision in Minister of
Home Affairs v. Fisher,2 Caribbean courts, on balance, have tended more
and more to move liberally in the direction of judicial activism, especially
in human rights matters and to reject formalism. In that case, Lord
Wilberforce for the Privy Council observed that the proper way to
construe a constitution based on the Westminster model is to treat it not
as if it were an Act of Parliament but rather
as sui generis, calling for principles of interpretation of its own, suitable
to its character ... without necessary acceptance of all the presumptions
that are relevant to legislation of private law.
Lord Wilberforce continued:3
This constitutional instrument has certain special characteristics. (1) It
is, particularly in ch. 1, drafted in a broad and ample style which lays
down principles of width and generality. (2) Chapter 1 is headed:
'Protection of Fundamental Rights and Freedoms of the Individual.' It
is known that this chapter, as similar portions of other constitutional
instruments drafted in the post-colonial period, starting with the
1. Examples are discussed later in the text. It is not proposed in this article to discuss
the vexed question whether Caribbean courts have used the Saving Law clause as a
vehicle for adopting an anti-rights approach to the Constitutions.
2. [19801 AC 319.
3. At p. 329. This statement was approved by the Privy Council in the case of Ong Ah
Chuan v. Public Prosecutor [1981 AC 648, (a case from the Republic of Singapore).
This principle of generously interpreting the fundamental freedoms was again
reaffirmed by the Privy Council in the case of AG of The Gambia v. Momodou lobe
[19841 AC 689, 700 -per Lord Diplock: A constitution, and in particular that part of
it which protects and entrenches fundamental rights and freedoms to which all
persons in the state are to be entitled, is to be given a generous and purposive
construction. See also Societe United Docks and Others v. Government of Mauritius
[1985] AC 585, 605 (per Lord Templeman). Dato Menterii Othman bin Baginda v.
DAto Ombi SyedAlwi bin Syed Idrs [1981] 1 MLU 29, 32B (per Raja Azlan Shah Ag.
LP of the Federal Court of Malaysia).](ViewImageLocal?handle=hein.journals/comlwr20&div=17&collection=&method=preview&ext=.png&size=3)
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Judicial Attitudes to Commonwealth Caribbean Constitutions
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