the previous ruling in Pratt and Morgan v A.G and secondly the international disapproval of the
death penalty that was upheld in these Caribbean countries. The case of Pratt and Morgan was a
seminal case to the Caribbean in relation to the death penalty. It set the threshold for cases like
Neville Lewis v A.G,
48
Joseph and Boyce and to some extent Matthew. Ironically, Pratt and
Morgan held that it is ‘cruel and unusual punishment to have a man on death row for more than
5yrs awaiting his execution.’ However in Joseph and Boyce, when the court attempted to hasten
the execution, the ACHR advised that the condemned had a right to petition. The court once
again skilfully applied the concept of legitimate expectation, but overtly concluded that it was a
breach of his right to “due process”. Similar to Teoh, they were accused of allowing international
law to ‘piggyback’ on concepts like legitimate expectation, natural justice and due process and as
such they created a gateway for international law to indirectly infuse into domestic jurisdiction.
Through these conceptual mediums, the court allegedly makes their decision thus covertly acting
ultra vires to the dualist principles.
In comparison, both Nallaratnam and Matthew enforced the rights to constitutional supremacy
as opposed to parliamentary sovereignty. Nallaratnam argued that the constitution of Sri-Lanka
does not provide for release or retrial of a convicted person after his conviction is confirmed by
the Supreme Court of Sri Lanka. Therefore, the state cannot execute the decision of the Human
Rights Committee to release the convict or grant a retrial. The government of Sri Lanka cannot
be expected to act in any manner which is contrary to the Constitution of Sri Lanka. Similarly in
Matthew, the AG of Trinidad and Tobago asserted that the mandatory death penalty that exist is
protected by the saving laws clause and as a result it cannot be interfered with or altered unless
done by the prescribed criteria outlined in the constitution.
Conclusion
The issue of the incorporation of international law according to the theory of dualism has raised a
lot of issues in regards to the judgement of some cases. The courts are sometimes accused as
acting ultra vires by covertly applying these international treaties to their judgments. However in
cases where these accusations are made, one must examine all the factors that could have said to
be instrumental in the courts decision. In Teoh the gravity of the situation as well as the
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[2001] 2 AC 50, PC
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