LAW1020 Worksheet 2

RBS Chap 4 Supremacy of the Constitution

1. The Doctrine of Supremacy and Supreme Law Clauses
- The adoption of supreme constitutions in general represented the end of the subordination
of local governmental institutions to imperial ones
- Constitutional supremacy is thus a symbol of decolonisation and the historical journey to
self-government and independence
- The Constitution of Antigua and Barbuda Sec 2 is an example of the supreme clause in a
constitution
- Supremacy clauses confer on Caribbean constitutions the highest authority in the legal
system and overriding force
- They provide very clear instructions on the implications of inconsistency with the
constitutions
- They are prohibitive and constrain the actions of Parliament
- Laws inconsistent with them are void
- In several of the constitutions the supremacy clause is especially entrenched (except
Trinidad and Tobago where this clause can be amended by a majority vote)
- The Jamaican constitution does not explicitly have a supremacy clause but it is implied
from its Sec 2 that voids any law inconsistent with the Constitution.
2. Elements of Constitutional Supremacy
a. Ordinary laws must conform with the constitution
- Subject to its own provisions, the constitution has primacy over all other laws.
- In so far as those laws are inconsistent with the constitution, they must yield to it
- Some constitutions also state that Parliament should pass no law that infringes on
the guaranteed fundamental rights and freedoms.
- Marbury v Madison per Marshall J
- all those who have framed written constitutions contemplate them as
forming the fundamental and paramount law of the nation, and
consequently the theory of every such government must be that an act of
the legislature, repugnant to the constitution, is void
- IRC v Lilleyman
- Cummings J gave emphasis to the written nature of the British Guiana
Constitution.
- It provides the organic or fundamental law with reference to which the
validity of laws enacted by the legislature are to be tested
- law enacted by the legislature cannot transgress or violate the provisions
of the fundamental law
b. Limits on governmental power
- It keeps a government in order and limits the exercise of governmental power

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RBS Chap 4 Supremacy of the Constitution
- Constitutional supremacy is an authoritative arrangement that both ordinary laws
and the administration of the government must be subordinated to the rules and
principles of the constitution.
- By conferring on the individual new legal rights, establishing new remedies, the
constitution safeguards against dictatorship, arbitrary exercise of power and
disregard of human rights.
c. Special procedure for amending the constitution
- Because the constitution is supreme law it isnt amended like any ordinary Act
d. Judicial review
- A written constitution that is supreme invariably produces and expansion in the
role of the judiciary
- Judicial review is the power and duty granted to superior courts to review laws
and governmental actions to determine their consistency with the constitution.
- Caribbean constitutions give jurisdiction to the High Court or Supreme Court to
provide effective remedies for breaches of guaranteed fundamental rights and
freedoms
- It is the duty of the High/Supreme Court to declare law passed by Parliament to
be ultra vires the constitution and void if it infringes the guaranteed rights
- High/Supreme Court also has explicit jurisdiction to determine whether there has
been a contravention of a non-bill of rights provision in the constitution
3. The Overseas Territories
- Overseas Territories are
- These constitutions are not supreme.
- Unlike independent countries, there is no clause in the constitutions of the overseas
territories that affirms their supremacy or specifically renders all other laws subject to the
constitutions.
- Their constitutions are contained in UK Orders in Council and can be revoked or
amended by another Order in Council.
- There are no special requirements for making changes to the constitutions that involve
the legislature of the territories.
- The local legislatures are vested with wide power to make laws for the peace, order and
good government of the territory; however, this power does not authorise alteration of the
constitution.
- In these constitutions the UK Parliament is supreme and may legislate at will for these
territories.
- Note case R (Misick) v Secretary of State for Foreign and Commonwealth Affairs pg. 179
4. The Machinery For Changing the Constitution
a. Entrenchment

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RBS Chap 4 Supremacy of the Constitution
- Entrenchment can be regarded as the imposition of requirements for making
changes to provisions in the constitutions that exceed and are more onerous than
those which must be observed in respect of ordinary laws.
- Indicate in broad terms the value the constitution-makers attribute to particular
constitutional provisions
- Attempts to ensure that those provisions which were regarded as important
safeguards by the constitutions or the electorate
- Meant to strengthen institutional stability and the legitimacy of the government by
making it difficult to change the basic institutional structure.
- Entrenchment devices are interlinked to produce deeper levels of entrenchment.
E.g. the requirement for the holding of a referendum is linked to other entrenching
devices such as a qualified parliament majority votes.
- Francis Alexis refers to this feature as the interlocking of entrenching devices
b. Low levels of entrenchment
i. Absolute majorities
- Some constitutions gave provisions that can be amended by an absolute
majority of all the members of Parliament, or of each House where
Parliament is bicameral.
- Cf. ordinary bills that require a simple majority of those members present
and voting
- In IJCHR Ltd v Marshall-Burnett constitutionals provisions that merely
require absolute majorities to be amended have been described as neither
deeply entrenched nor entrenched
- Absolute majority provisions are entrenched at a very low level.
ii. Declarations
- This the requirement of a statement or declaration that the amending Act is
an Act for the purpose of altering the constitution, safeguards a
constitutional provision against unintended or implied alteration.
- Trinidad & Tobago Constitutional Sec 54(5)
No Act other than an Act making provision for any particular case
or class of case, inconsistent with provisions of this Constitution,
not being those referred to in subsections (2) and (3), shall be
construed as altering any of the provisions of this Constitution, or
(in so far as it forms part of the law of Trinidad and Tobago) any of
the provisions of the Trinidad and Tobago Independence Act, 1962,
unless it is stated in the Act that it is an Act for that purpose.

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RBS Chap 4 Supremacy of the Constitution
- A failure to so declare will render the Act void to the extent of its
inconsistency with the constitution
- Prevents Parliament from unintentionally amending the constitution
simply because it has achieved the requisite majorities for constitutional
change.
iii. Certificates of compliance
- A safeguard against casual or unintended amendment
- Some constitution require that a bill to alter the constitution may not be
submitted to the Governor Genera for assent unless it is accompanied by a
certificate from the Speaker of the House certifying due compliance with
all the relevant manner and form requirements prescribed by the
constitution.
St Kitts and Nevis Constitution Sec 38(10)
- The absences of such certificate renders the amendment invalid.
- Bribery Commissioner v Ranasinghe Case
Facts
There was a challenge to the establishment of a bribery tribunal by
the respondent who had been convicted under it. The respondent
argued that the tribunal which was set up by an ordinary Act in fact
required special majorities for its passage because it was
inconsistent with the Constitution of Ceylon dealing with judicial
appointments.

Held/Notes
The PC agreed that the establishment of the tribunal amounted to
an amendment of the provisions of the Constitution which required
an endorsement certificate from the Speaker that the bill had
obtained the requisite majority for amending the Constitution.
Lordships reject the argument that the Parliament of Ceylon was
sovereign and that the courts must regard official copies of its laws
as conclusive of their validity.
The law was void because of its inconsistency with the
Constitution
c. Deeper levels of entrenchment
i. Delay mechanisms
ii. Qualified parliamentary majorities
iii. Referenda

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RBS Chap 4 Supremacy of the Constitution
iv. Entrenchment by infection
d. Entrenchment and implementing the CCJs appellate jurisdiction
5. Parliament As supreme and Yet Not Supreme
6. The Consequences of Inconsistency with the Constitutions
7. The Caribbean Community