Caribbean Legal Systems: One Argument for Caribbean Court of Justice

The following appeared in the Gleaner on October 19, 2006.

The difficulty faced by Easton Grant in obtaining a Visa to visit England to represent himself before the Privy Council may be used as an argument FOR the adoption of the Caribbean Court of Justice.

The Privy Council Judgment was delivered on the 7th December 2006 and may be found here.

Former teacher gets help to appeal case in UK

published: Thursday October 19, 2006

Attorney General and Minister of Justice, A.J. Nicholson, has intervened in the case involving Easton Grant, a Jamaican man, who is attempting to represent himself before the London-based Privy Council, but has been refused a visa to enter England.
Mr. Nicholson yesterday wrote to the British High Commissioner Jeremy Creswell, seeking a reversal of the decision.
Mr. Grant, a former teacher at the Montego Bay Community College in St. James, is seeking to have his termination of employment deemed illegal. He has so far been unsuccessful, having exhausted the local courts and has been granted leave by the Court of Appeal to take his case to the London lawlords.

Turned down
His case hearing is set for October 30 and 31, but the English High Commission turned down his visa application saying he had not demonstrated that he will return to Jamaica.

In his letter to Mr. Creswell yesterday, Mr. Nicholson noted that the Judicial Committee of the Privy Council remains Jamaica's final court of appeal.

"This, I believe, clearly implies that litigants will have access to their final court without impediment, and should not be denied the right to pursue their appeals to the highest level.

To date, Mr. Grant has opted to argue his case without legal representation, as is his right: he should be permitted to continue to do so especially before our highest court," Mr. Nicholson said.

Public Law Syllabus: Entrenched provisions explained

Section 49 of the Constitution lists certain parts of the Constitution as being entrenched or deeply/specially entrenched. What this means is that Parliament cannot seek to amend these sections in any way unless the procedure set out in the Constitution for their amendment is followed by Parliament.

The procedure for amending entrenched and deeply/specially entrencehed provisions is set out here. David Rowe's article, 'Trial by Jury-Right or Privilege' also sets out the procedure for amending entrenched provisions.

Two cases which address the issue of entrenchment are Hinds v R and the case of Independent Jamaica Council for Human Rights Ltd & Others v Attorney General & Another .

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UPDATED MAY 16, 2007 :

Examples of entrenched provisions of the Jamaican Constitution :

• Section 2 which establishes that (subject to sections 49 & 50 of the Constitution) where any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the extent of the inconsistency, shall be void.
• Section 34 which establishes the Parliament and states that it shall which shall consist of Her Majesty, a Senate and a House of Representatives.
• Section 35 and section 36 which deal with the Senate and the House of Representatives respectively.
• Section 39 which sets out the Qualification for membership of Senate and House of Representatives.
• Section 63 (2) which states that Sessions of Parliament shall be held at such times so that a period of six months shall not intervene between the last sitting of Parliament in one session and the first sitting thereof in the next session.
• Section 64 (2), (3), (5) which deal with Prorogation and dissolution of Parliament.
• Section 68(1) which establishes that the executive authority of Jamaica is vested in Her Majesty.

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.