The rule of law and good governance: a constitutional 'conclusive evidence' clause and Re Aubrey Norton

• Author: Hugh A. Rawlins
• Position: B.A.; LL,B.; LL.M; Barrister and Solicitor; Lecturer in Law, University of the West Indies; formerly Solicitor General of St. Christopher (St. Kitts) and Nevis
• Pages: 116-138

THE RULE OF LAW AND GOOD GOVERNANCE:

A CONSTITUTIONAL 'CONCLUSIVE EVIDENCE'

CLAUSE AND RE AUBREY

NORTON.

HUGH

A-

RAWLINS'

Constitutional and statutory clauses which purport to exclude the

jurisdiction of the courts to review the actions and decisions of public

authorities are the subject of much legal controversy, particularly

because they seek to deny the subject access to the courts for redress for

perceived illegality. Some legal thinkers are of the view that such

provisions negate the rule of law. It has even been contended that

statutory exclusion or ouster clauses are prima facie unconstitutional,

since they purport to circumscribe the jurisdiction which the written

constitutions of the Commonwealth Caribbean1 have conferred upon

the High Courts.2 This contention may, taken to the ultimate conclusion,

cause the courts to be confronted with the anomalous question as to

whether

a

constitutional exclusion clause may itself be unconstitutional,3

For their part, the courts have usually responded to these clauses by

jealously guarding their jurisdiction. In this regard, however, their

approaches to statutory exclusion provisions have been more consistent

B.A.; LL,B.; LL.M; Barrister and Solicitor; Lecturer in Law, University of the West

Indies; formerly Solicitor General of

St.

Christopher (St. Kitts) and

Nevis.

I am grateful

to my colleague, Dr. Albert K. Fiadjoe, Reader in Public Law in the Faculty of

Law

of

the University of the West Indies, who read the penultimate draft and offered helpful

comments.

1 Herein, this term may be used interchangeably with "Caribbean" or "West Indian".

2 See Dr. Sonia Richards,

The Development

of the Judiciary in Barbados, (Ph. D. thesis,

1989,

University of the West Indies), pp. 326 et seq.

3 See also, the comment by Dr. Albert K. Fiadjoe in Commonwealth Caribbean Public

Law: Text. Cases and Materials (Cavendish, 1996), at p. 57.

than their approaches to constitutional exclusion provisions. The

inconsistency in relation to the latter merely accentuates the

controversies which there are in this area of the law. The decision of the

High Court of Guyana, Demarara Circuit, in Re Aubrey Norton4 has

brought these controversies into focus again. This comment is therefore

intended to discuss this decision in the light of the competing

contentions, and to suggest that perhaps the case was decided wrongly

and contrary to the principles of the rule of law and good governance.

Foundation Considerations

The rule of law and good governance are, and will continue to be,

critical functions of internal peace and stability in Caribbean countries.

The Preamble to the 1966 Independence Constitution of Guyana

afforded express recognition to the rule of law.5 This has not been

reproduced in the 1980 Republican Constitution.6 Notwithstanding

this,

it is submitted that the importance of the doctrine as a constitutional

fundamental in the jurisprudence of Guyana is undeniable. Endell

Thomas asserts, for example, that the doctrine is a part of our Caribbean

heritage, so that even where there is no express mention of it in the

constitution, it may nonetheless be inferred from constitutional

provisions which set limitations on legal action.7 These include the

Supreme Law

clauses,

as well as the entrenching and fundamental rights

provisions which are contained in Articles 18, 66 and 138-154,

respectively, of the 1980 Constitution of Guyana, The doctrine may also

be inferred from Article 40(l)(a) of the said Constitution, to the extent

that it affords to the individual the protection of the law. It may in fact

be inferred from the Constitution as a whole, to the extent that it entitles

the individual to responsible government.

4 No. 5932 of 1997, Desiree Bernard, C .J. The decision was given on 12 January, 1998.

5 See also the Preambles to the present Constitutions of the Bahamas, Barbados, Belize,

Dominica, Grenada, St. Lucia and Trinidad and Tobago.

6 The Preamble to this Constitution refers,

inter

alia,

to Socialist Legality. It is submitted

that this was not intended to supplant the rule of law.

7 See Endell Thomas, "The Rule of Law" in Francis Alexis et al (Editors),

Commonwealth

Caribbean Legal Essays, 1982, Chapter X, at

p.

272.