SOON AFTER the decision in Pearson Leacock vs Attorney General, referred to in last week’s article the Caribbean Court of Justice invoked the doctrine of legitimate expectation to avoid the consequences of the traditional view that international treaties require domestic legislation before they become effective in domestic law.In A.G. of Barbados and others vs Jeffrey Joseph and Lennox Ricardo Boyce (2005) the Caribbean Court of Justice had to consider the effect of an international treaty, The American Convention on Human Rights, (ACHR) which although ratified was never incorporated into domestic law in Barbados.So far as relevant, the facts were that the defendants were convicted of murder and later appealed to the Inter-American Commission on Human Rights and while this appeal was pending death warrants were read to them. They applied to the court of for stays of execution and argued that their right of life, security of the person, protection of the law and to be subjected to inhuman and degrading punishment was being infringed and submitted that the death penalty should be commuted.Their application was dismissed at first instance, allowed by the Barbados Court of Appeal, and the decision of the Court of Appeal was affirmed by the CCJ.One of the issues before the CCJ was whether the provisions of an international human rights treaty not incorporated into local law which give a right of access to international tribunals could avail a person convicted of murder and sentenced to the mandatory punishment of death by hanging.The court held, among the things, that the right created by treaty to appeal to international treaties created a legitimate expectation the breach of which will deprive a citizen of a constitutional right to due process and the rule of law. The consideration of mercy should, therefore wait a reasonable time the result of the appeal to such an international body. This was so whether or not the treaty had been incorporated by Act of Parliament into domestic law.DilemmaIn the leading judgment (a joint judgment delivered by President De La Bastide and Justice Saunders), after discussing the subject of legitimate expectation in some detail, the dilemma confronting the court was put in these terms:“Put in stark terms, by ratifying the treaty, the executive has thrown to the condemned man, fighting for his life to be spared, a lifeline, albeit one that perhaps offers only a slim chance of rescue. “The real issue facing judges is this: as the man is about to grasp this lifeline, is it fair for the executive, which placed it there in the first place, to yank it away? Is it enough for the court then merely to explain to the man that unincorporated international treaties form no part of domestic law; that he has derived no “right” from the mere accession of his Government to the treaty; that the executive does not have to await the determination of his petition by the international body before executing him, even though the report of that body, if it were available, would have to be considered by the authority responsible for exercising the prerogative of mercy and might persuade that authority to spare his life? “Those are the haunting questions that cause judges much discomfort.” The learned judges then considered the facts and circumstances that gave rise to the legitimate expectation of the respondents. They put the case for the application of the doctrine of legitimate expectation in these terms: “Quite apart from the fact that Barbados had ratified the ACHR, positive statements were made by representatives of the executive authority evincing an intention or desire on the part of the executive to abide by that treaty. Petition“Such statements were, for example, made in Parliament during the debate on the Constitution Amendment Act. Further, it appears that it was the practice of the Barbados Government to give an opportunity to condemned men to have their petitions to the international human rights body processed before proceeding to execution. “In all these circumstances we would hold that the respondents had a legitimate expectation that the state would not execute them without first allowing them a reasonable time within which to complete the proceedings they had initiated under the ACHR by petition to the commission.”A full panel of seven judges heard the appeal and most of the judges agreed with the view of President De La Bastide and Saunders J. that the right created by ACHR to appeal to Inter-American Commission on Human Rights created a legitimate expectation, the breach of which would deprive the respondents of their constitutional right to due process.The decision of the CCJ is a very powerful statement for the application of the doctrine of legitimate expectation since it required the court to circumvent the established rule in jurisdictions such as ours, that a treaty does not become effective in domestic law unless incorporated into local law by Act of Parliament.
