Legitimate Expectation and the Creation of Procedural and Substantive Legal Rights in Commonwealth Caribbean Public Law

Abstract

This paper advances the central argument that since Commonwealth Caribbean courts have been specifically entrusted with the great constitutional power to review not only the substance or merits of executive acts or decisions, but also the awesome power to review and strike down as void any legislation which is inconsistent with the respective Commonwealth Caribbean constitutions, then it logically and necessarily follows that these courts, in order to be able to discharge their constitutional mandates effectively, should have the constitutional power to create new substantive remedies, in general, and remedies which give protection to substantive legitimate expectations, in particular. This power is supported by strong constitutional and democratic imperatives. It should also be seen as a reinforcement of the courts' common law power to develop the law within the context of fairness and justice in suitable cases. Moreover, Commonwealth Caribbean courts may glean useful guidance from the striking developments which have taken place in English and European law in the area of substantive legitimate expectation. It is to be regretted that the vast bulk of the case law emanating from Commonwealth Caribbean courts in this area does not seem to reflect any significant awareness of these courts of their great power and responsibilities in this regard.