Constitutional Unamendability in the Region

A central feature within constitutional design is the amendment procedure or formula, through which formal changes to the constitution can take place. There is a growing trend in global constitutionalism to impose various limitations on constitutional amendment powers (‘unamendability’). These restrictions on the ability to amend constitutions may be procedural, for example by demanding special procedural conditions for amending the constitution. Others are temporal and require constitutional actors to adhere to certain specifications as to the timing of various steps in the formal amendment process, either at the proposal or ratification stages, or both. More contentious is the imposition of substantive limitations on amending constitutional subjects (provisions, principles, rules, symbols, or institutions) through the formal constitutional amendment provision (‘substantive unamendability’). Substantive unamendability of a constitutional subject may be explicit in the form of –what is often termed – eternity or unamendable clauses, or may be implicit as result of courts’ interpretation of the constitutional text, declaring that even in the absence of explicit unamendability, certain constitutional principles are implicitly unamendable. The Chapter focuses on unamendability in the Caribbean. It reviews some of the formal or temporal limitations that we find in Caribbean Constitutions; then reviews explicit substantive limitations, focusing on Cuba, Haiti and Dominican Republic, and implied substantive limitations, as applied in Belize and hinted in Puerto Rico. The Chapter demonstrates that the global trend of limitations on formal constitutional change finds its manifestations also in Caribbean Constitutions.

Constitutional Dissonance and the Rule of Law in the Turks and Caicos Islands

The Turks and Caicos Islands, a British Overseas Territory, has witnessed a decade of constitutional and political upheaval; the consequences of which are still being felt. The locally elected government took advantage of its relative constitutional freedom to abuse its position and brought governance in the territory to almost beyond breaking point. The investigations that followed shone a bright light on how the local government operated, the checks and balances that were (or were not) in place, and the role of the British government, which is meant to uphold good governance in the territories. The chapter provides a detailed assessment of the constitutional, legal, and political issues and arguments that were used as the British government tried to correct the deep-seated structural weaknesses present in the TCI, and prosecute individual cases of venality that were uncovered. This case study is important in highlighting how tenuous constitutionality, democracy, and legality can be in small territories.

The constitution of puerto rico

This chapter seeks to provide an answer to the question of ‘What is the constitution of Puerto Rico?’ It traces the development of the Constitution of Puerto Rico since the establishment of a Western (that is, non-indigenous) legal system in the island. The chapter will show that although there is a document titled ‘Constitution of the Commonwealth of Puerto Rico’ (Constitución del Estado Libre Asociado de Puerto Rico), that document is far from containing all the written norms that have formal constitutional status in the island. This is a direct result of the evolution of Puerto Rico’s territorial relationship with its metropolis and was dramatically exemplified by the recent adoption of the Puerto Rico Oversight, Management, and Economic Stability Act, 2016 (PROMESA) by the U.S. Congress (and Act that altered in fundamental ways the functions and powers of the ordinary institutions of government in the island).

Suriname’s Constitutional Limits

This chapter outlines the major forces that have shaped the constitutional development of the Republic of Suriname. These forces include the transplant of population and legal institutions during the colonial era; the post-World War II shift of the international power balance in favour of decolonizing colonies as manifested in the right to self-determination; and domestic forces, including trade unions and media, that protected the constitution from being suspended or undermined in periods of political turmoil. Based on the experience of Suriname, it is argued that constitutional development in small postcolonial societies is highly constrained due to the transplant of European legal institutions and corresponding expertise.

Caribbean Constitutions and the Death Penalty

The states of the Commonwealth Caribbean have sought to pursue a constitutional path that rests upon the ancient origins of the English common law while also speaking to the unique needs and aspirations of their dynamic and diverse populations. To advance this project, in 2005 the Caribbean Court of Justice was launched to indigenize and harmonize the constitutional law of these small states. An area of great legal intricacy and political complexity has been the death penalty. While capital punishment is declining in popularity and usage around the world, by and large the Commonwealth Caribbean states have resisted these trends. It has been for the appellate courts in the region and in London to integrate local practices, regional rules, and international standards. This chapter examines the origins of Commonwealth Caribbean capital punishment jurisprudence, the status of the mandatory penalty, and the effect of the savings clause on human rights adjudication in this arena.

The Interpretation of Commonwealth Caribbean Constitutions

This chapter focuses on the differing approaches of the Judicial Committee of the Privy Council and the Caribbean Court of Justice towards the interpretation of the independence Constitutions of the Commonwealth Caribbean. Critiquing the lack of autochthony and the lack of meaningful public participation in the drafting of the region’s independence Constitutions, a number of influential Caribbean constitutional scholars have advocated a much more judicially creative approach to the interpretation of the region’s constitutions than the more conservative approach that has dominated the JCPC’s more recent jurisprudence. I call the approach advocated by these scholars the holistic approach because it treats the constitution as a whole as greater than the sum of its parts. The Caribbean Court of Justice in two recent judgments on appeals from Barbados and Guyana respectively has now adopted this approach. Notwithstanding its undoubted attraction in terms of resolving some of the deficiencies and flaws in the region’s independence Constitutions, it will be argued that the holistic approach risks undermining not only the whole interpretive process, but also the whole constitutional order.

The Constitutions of the Dominican Republic

According to some observers, the Dominican Republic holds the world record of number of constitutions. This chapter, however, argues that continuity rather than change best describes the country’s constitutional development. Since its first constitution in 1844, constitutional charters have never departed from the principles of a republican, liberal state based on popular sovereignty, separation of power and rule of law, or experimented with its presidential character. Although for a long time, Dominican constitutions functioned as a document that facilitated and legitimated absolute power, rather than as a fundamental law that restricted arbitrary power, no government has attempted to rule without a constitution that adopted the principles of a nominally liberal democracy. Recent constitutional reforms, however, have been relatively effective in implementing real checks on the traditionally strong presidency, thus potentially starting a process of aligning the constitutional liberal aspirations with the exercise of public authority.

Constitutional Design in the Commonwealth Caribbean

The Commonwealth Caribbean consisted of Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines, and, Trinidad and Tobago. In the intervening years between 1962, when Jamaica and Trinidad and Tobago attained their independence, and 1983, when St. Kitts-Nevis attained its independence, it is to be noted that all the constitutions of these countries bore a resemblance to each other. This similarity between countries and the similarity of constitutional design has been referred to as the Westminster–Whitehall model in the Commonwealth Caribbean. This chapter explores the main tenets of the Westminster–Whitehall model as well as providing some context as to why there is a desire to hold on to it.

Haiti’s Constitution of 1987

Haiti’s Constitution of 1987 has lasted longer than any of its previous 22 constitutions and is credited with bringing democracy. After a brief review of Haiti’s constitutional past, characterized by instability and violence, this chapter closely examines the 1987 constitution both as against this past and as the country’s foundation for the rule of law. It offers insight into the charter as a rejection of the authoritarianism and brutality of the Duvaliers, father and son, and describes the intent, palpable in the original text, to bring on democracy, human rights, and political liberalism. It emphasizes its insistence on parliamentary supremacy drawing from the political philosophy found throughout the francophone world during France’s third and fourth republics and describes the regime as semi-presidential, similar, and yet significantly different from the Constitution that governs France today. It delves into the principle difference by underscoring how, in contrast, Haiti’s 1987 Constitution expressly limits presidential power. It assesses this difference against the reality of the exercise of presidential power in issuing decrees in practice. It offers in-depth analysis of the revolutionary post-earthquake amendments of 2012 that impose gender equity in public life, eliminate the former prohibition on dual nationality, attempt to address Haiti’s chronic electoral dysfunction and environmental degradation, reinstitute the military, and establish a Constitutional Council with sweeping judicial review power. The chapter also exposes the failings of this constitutional democracy in addressing specific human rights violations and in clinging to an outdated insistence on parliamentary supremacy that potentially undermines constitutional supremacy.

The Constitutional Framework of the French Caribbean

France is a unitary State. As such, it only has one unique parliament, one unique government, and one unique constitution, which lays down the framework for the governance of its territories around the world. Included amongst these territories are Guadeloupe, Martinique, Saint Martin and Saint Barthelemy, which are located in the Caribbean. This chapter focuses on the general framework of their functioning within the French Constitution. It begins by discussing the history of the French Caribbean. It then considers how the different territories are currently governed as an integral part of the State. It argues that the French Caribbean should not be regarded as a mere replica of the functioning of the administrative subdivisions of mainland France. The four French Caribbean territories are, to various degrees, more independent from the State’s interference than the other administrative subdivisions in mainland France.