Public Law Syllabus : Supremacy of the Constitution

The Constitution of Jamaica by Chapter 1 : 2 states the effect of the Constitution as such :

Subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

There are several cases that have enforced the Supremacy of the Constitution in the Commonwealth Caribbean.

1. Hinds v R (1977) AC 195 is considered to be the authority on the doctrine of Separation of the Legislative, Executive and Judicial Powers. It is a Jamaican case which concerned the constitutionality of the Gun Court Act of 1974. You might not find the full text of the judgment online, but it is discussed in several other cases which may be found online. One such case is Trinidad and Tobago Civil Rights Association v Patrick Manning. A discussion of Hinds v R may be found at page 28 of the judgment.

2. D.P.P. v Kurt Mollison (No. 2), which is reported at P.C.#88 of 2001, is another example of the way in which the Courts have enforced the principle of Constitutional Supremacy. This case also deals with the doctrine of Separation of Powers.

3. Charles Matthew v The State is a 2004 Trinidadian case which required the Privy Council to determine the constitutionality of the death penalty.

4. Three Jamaican cases which upheld the supremacy of the constitution are :

• The Pratt and Morgan case : Earl Pratt & Ivan Morgan v The A.G. & Anor.
• The Neville Lewis case : Neville Lewis et al v A.G. & Anor.
• Lambert Watson v The Queen : The issue to be decided in this case was whether the mandatory death sentence imposed on capital murder under the Offences against the Person Act cases was unconstitutional.

5. In February 2005, the Jamaican Government's bid to make the Caribbean Court of Justice the final Appeal Court of the island was disappointed by the Privy Council's Ruling in the case of Independent Jamaica Council for Human Rights Ltd & Others v Attorney General & Another .

The issue which came up before the Judicial Committee of the Privy Council was stated as follows:

On 30 September 2004 the Governor-General of Jamaica, acting under section 60 of the Constitution, gave his assent to three bills, the broad effect of which was to abolish the right of appeal to Her Majesty in Council and to substitute a right of appeal to a new regional court of final appeal, the Caribbean Court of Justice (“the CCJ”). The key question in this appeal is whether the procedure adopted in enacting that legislation complied with the requirements laid down in the Constitution.

The judgment of the Judicial Committee of the Privy Council declared the Caribbean Court of Justice Act 2004 along with the Caribbean Court of Justice (Constitutional Amendment) Act 2004 and the Judicature (Appellate Jurisdiction) Act 2004 unconstitutional and void.

6. Like Hinds v R the full text of the judgment of Collymore v Attorney General for Trinidad and Tobago might not be available online. However, you can find the case discussed in other cases. One such case is the 2003 Trinidad & Tobago case Alleyne & Others v Attorney General of Trinidad and Tobago. The reference to Collymore is found at page 55 of the judgment.

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UPDATED : MAY 11, 2007:

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** In January 2007 legal history was created in The Cayman Islands when that country's Court of Appeal ruled that no adult or juvenile can be sentenced to be detained at Her Majesty's pleasure or at the Governor's pleasure. Read more here.

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**An excellent article written by Ms Dawn Palackdharry Singh discussing the hierarchy of the Laws in Trinidad and Tobago, including a brief discussion on the supremacy of the Constitution, may be found here.

Criminal Law: Offences against the Person Act 2005 Amendment

Below are the 2005 amendments to sections of the Offences against the Person Act as they relate to the provisions of the Act that deal with sentences of capital punishment and life imprisonment.

Note that capital punishment is no longer mandatory on a conviction of capital murder.

Criminal Law : Offences against the Person Act: Section 2. Murders

(1) Subject to subsection (3), every person to whom section 3 (1A) applies or who is convicted of murder committed in any of the following circumstances shall be sentenced in accordance with section 3 (1) (a), that is to say -

(a) in subsection ( 1 ) [of section 2 of the Offences against the Person Act] by deleting paragraph (d), relettering paragraphs (a) to (c) as paragraphs (b) to (d), and inserting the following as paragraph (a)-

"(a) any murder

(i) committed by a person if, in the course or furtherance of, arising out of, or ancillary to, that murder, the person commits an offence referred to in subsection (1 A); or committed by a person in the course or furtherance of, arising out of, or ancillary to, an offence referred to in subsection (1A), whether or not the individual murdered was an individual that the offender intended to murder in committing the offence;

(b) the murder of -

(i) a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;
(ii) a correctional officer acting in the execution of his duties or of a person assisting a correctional officer so acting;
(iii) a judicial officer acting in the execution of his duties; or
(iv) any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force, or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;

(c) the murder of any person for any reason directly attributable to -
(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or
(ii) the service or past service of that person as a juror in any criminal trial;

(d) the murder of a Justice of the Peace acting in the execution of his judicial functions;

(e) any murder committed pursuant to an arrangement whereby money or anything of value - (i) passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or
(ii) is promised by one person to another or to a third person at the request or direction of that other person, as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;

(f) any murder committed by a person in the course or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public.

(1A) For the purposes of subsection (1)(a), the offences referred to in this subsection are-

(a) burglary or housebreaking;
(b) arson in relation to a dwelling house;
(c) robbery; or
(d) any sexual offence.

(2) Subject to subsection (3), every person convicted of murder other than a person-

(a) convicted of murder in the circumstances specified in subsection (1) (a) to (f); or

(b) to whom section 3 (1A) applies,shall be sentenced in accordance with section 3 (1) (b).

(3) If in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph (e) of that subsection), two or more persons are convicted of that murder-

(a) the provisions of section 3 (1) (a) shall apply to any of those persons who-

(i) by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered; or

(ii) himself used violence on that, person in the course or furtherance of an attack on that person; and

(b) any other persons convicted of the murder shall be sentenced in accordance with section 3(1)(b).

(4) (Subsection 4 deleted by Act 1 of 2005)

(5) In this section –

"correctional officer" has the same meaning as in the Corrections Act;

"judicial officer" means –

(a) a Judge of the Supreme Court or the Court of Appeal, the Master in Chambers or any person for the time being performing the functions of a Judge of the Supreme Court or Court of Appeal or of the Master in Chambers;

(b) the Registrar or Deputy Registrar of the Supreme Court, the Revenue Court or the Court of Appeal or any person for the time being performing the functions of Registrar or Deputy Registrar;

(c) a Resident Magistrate or any person for the time being performing the functions of a Resident Magistrate;

(d) a person employed in a court's office who carries out prosecution of offences or in the Office of the Director of Public Prosecutions or engaged to carry out functions on behalf of the Director of Public Prosecutions;

"member of the security forces" means a member of ­

(a) the Jamaica Constabulary Force;

(b) the Jamaica Defence Force to the extent that such member has been assigned to act in aid of the Police;

(c) the Island Special Constabulary Force;

(d) the Rural Police.

Criminal Law: Offences against the Person Act: Section 3

Section 3 : Sentence for Murder.

(1) Every person who is convicted of murder falling within-

(a) section 2 (1) (a) to (f) or to whom subsection (1A) applies, shall be sentenced to death or to imprisonment for life;

(b) section 2 (2), shall be sentenced to imprisonment for life or such other term as the court considers appropriate, not being less than fifteen years.

(1A) This subsection applies to a person who is convicted of murder and who, before that conviction, has been convicted in Jamaica-

(a) whether before or after the 14th October, 1992, of another murder done on a different occasion; or

(b) of another murder done on the same occasion.

(1B) (a) Where a court pronounces a sentence of death pursuant to subsection (1)(a) -(a) the form of the sentence shall be to the effect only that the person is to "suffer death in the manner authorized by law";

(b) every person so sentenced shall, after sentence, be confined to some safe place within the correctional institution, apart from all other inmates; and

(c) the sentence may be carried into execution as heretofore has been the practice.

(1C) In the case of a person convicted of murder, the following provisions shall have effect with regard to that person's eligibility for parole, as if those provisions had been substituted for section 6(1) to (4) of the Parole Act-

(a) where a court imposes a sentence of imprisonment for life pursuant to subsection (1)(a), the court shall specify a period, being not less than twenty years, which that person should serve before becoming eligible for parole; or

(b) where, pursuant to subsection (1)(b), a court imposes-

(i) a sentence of imprisonment for life, the court shall specify a period, being not less than fifteen years; or

(ii) any other sentence of imprisonment, the court shall specify a period, being not less than ten years,which that person should serve before becoming eligible for parole.

(1D) A person shall not be sentenced to death under this section by reason of a previous conviction for murder referred to in subsection (1 A) unless-

(a) at least seven days before the trial, notice is given to him that it is intended to prove the previous conviction; and

(b) before he is sentenced, his previous conviction for murder is admitted by him or is found to be proven by the trial Judge.

(1E) Before sentencing a person under subsection (1), the court shall hear submissions, representations and evidence, from the prosecution and the defence, in relation to the issue of the sentence to be passed.


Sentence of death not to be passed on pregnant woman.

(2) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be any sentence of imprisonment that may be imposed under subsection (1)(b) instead of sentence of death.

Procedure where woman convicted of capital offence alleges she is pregnant.

(3) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit so to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.

(4) Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be re­sworn:

Provided that -

(a) if any member of the trial jury, after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act or for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and

(b) where there is no trial jury, or where a jury have disagreed as to whether the woman is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.

(5) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.

(6) Where on proceedings under this section the jury find that the woman in question is not pregnant the woman may appeal under the Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her any sentence of imprisonment that may be imposed under subsection (1)(b):

Provided that the operation of the provisions of this subsection shall be deemed to be coincident with the operation of the Judicature (Appellate Jurisdiction) Act.

Criminal Law: Offences against the Person Act: Section 3A

Life Imprisonment for Non-Capital Murder

3A. (1) On an indictment charging a person with murder falling within section 2(1), he may be found not guilty of such murder but guilty of murder falling within section 2(2).

(2) For the purpose of any appeal against conviction, murder falling within section 2(1) shall be treated as a distinct offence from murder falling within section 2(2).

(3) Where on an appeal against a conviction of murder-

(b) for which the appellant has been sentenced to death,

the Court substitutes a verdict of guilty of murder falling within section 2(2), the Court shall nevertheless determine whether a sentence of death is the appropriate sentence by virtue of section 3(l A) and shall confirm that sentence if it is so found to be appropriate.

(4) Subject to the foregoing provisions of this section, murder falling within section 2(1) shall not be treated, for any purpose, as a different offence from murder falling within section 2(2).


3B. (This section repealed by Act 1 of 2005).

Criminal Law: Offences against the Person Act : Section 3C

Provisions as to appeals in relation to repeated and multiple murders.

3C. (1) Where a person is sentenced to death by virtue of subsection (1A) of section 3, he shall have the like right of appeal against the sentence as if the appeal were against a conviction involving sentence of death.

(2) On any such appeal against sentence, the Court shall have the same powers as to allowing or dismissing the appeal as on an appeal against a conviction; and where the Court allows the appeal, and it appears to the Court that, having regard to the decision on the appeal, the sentence is not warranted in law, the Court shall quash the sentence and pass the appropriate sentence in substitution for it.

(3) Where a person is sentenced to death under subsection (1A) of section 3 (which relates to more than one conviction for murder) and afterwards one of the convictions is set aside on appeal -

(a) that person may apply to the Court of Appeal to set aside the sentence of death on the ground that it is no longer warranted in law having regard to the decision on appeal; and

(b) whether or not an application is made under paragraph (a), the Registrar of the Court of Appeal shall notify the Court that the sentence is one which should be set aside on the ground referred to in that paragraph, and the Court if satisfied that the sentence is no longer warranted in law, shall set it aside and pass the appropriate sentence in substitution for it.

(4) Where a person is sentenced to death as aforesaid then, unless he is so sentenced on being convicted of murder falling within section 2(1), the sentence shall not in any case be executed so long as the other conviction can be set aside on appeal or by any other legal process.