CONSTITUTION

SOURCE OF LAW

Introduction
The Constitution is the most important
source of law in the Commonwealth
Caribbean.
In this jurisdiction it is written unlike the
U.K. which is unwritten.
It is an indigenous source of law and a
true manifestation of the political will of
the people.
It gives life to judicial review and the
concept of ultra vires.

Constitutional Supremacy
The Constitution is a body of rules
that determines the structure of the
State and it is the principal law by
which all other laws are measured:
Collymore v AG(1967) 12 WIR 5
See S2 of the Jamaican Constitution

Functions of The
Constitution
It defines citizens rights and the shape
of the legal and political systems .
It lays out mandatory procedures for
government.
It is the foundation of judicial review,
states basic human rights; redresses
violation of such rights and remedies,
procedural fairness or due process of
law.

Form and Structure

Preamble (exception Jamaica)
Chapters on citizenship
Fundamental rights and freedoms/Bill of
Rights
Powers of the Head of State and
Parliament
Establishment and definition of Public
Service and Judicial Commissions.
Finance

Saving Law Clauses

Attempt to preserve pre
independence law usually at the
expense of human rights provisions.
S 26 (8) of Jamaican Constitution
See Nasralla v DPP [1967] 2 AC 238

Savings Law Clauses

In recent times the analysis on them
have evolved in their interpretation.
The Nasralla approach has been
discredited making way for a more
meaningful relationship for pre
independence law and the spirit of the
Constitution.
Lambert Watson v R [2004] 3WLR
841; 64 WIR 241

Preamble
The typical preamble contains an
introductory clauseevery person is
entitled to fundamental rights and
freedoms regardless of race, colour,
creed, political opinion and sex.
Freedom of expression, assembly,
conscience, privacy and equality
before the law.

Separation of Powers
Judges are independent, impartial and
separate from political interference, and
from the political arm of government to
judge impartially: Hinds v R (1979) 27
WIR 377 where the Jamaican
government attempted to establish a gun
court giving RM jurisdiction reserved for
Supreme Court judges under the
Constitution, with a Review Board instead
of a court the power to sentence.

Separation of Powers
The Privy Council overturned the
Court of Appeal Decision that this was
a violation of the separation of
powers enshrined in the Constitution.
The Constitutional provision which
secures the tenure of judges by the
Judicial Commission to appoint and
remove judges underpins the
independence of the judiciary.

Entrenchment of Constitutional
Provisions
This is where certain provisions may not be
altered except by a special majority of
Parliament or in some cases a Referendum.
In Hinds v R held: the purpose for
entrenching is to ensure that provisions
regarded as important safeguards by
political parties..should not be altered
without mature consideration by
Parliament and a larger proportion than the
bare majority for ordinary laws.

Entrenchment
See the recent Jamaican case:
Independent Jamaica Council for
Human Rights (1998) Ltd. V
Marshall-Burnett et al (2005) 65
WIR 268

 Marcia C. Robinson (Mrs.)

LLB; MBA; BSc. (Hons.)
Attorney at-Law/Lecturer