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: Sentencing: UPDATE : Earl Pratt to be released from prison

The following story appeared in the May 12 2007 edition of the Gleaner :

From death row to freedom - Earl Pratt to be released after decades in prison

published: Saturday May 12, 2007
Glenroy Sinclair, Assignment Coordinator

More than a decade after the United Kingdom Judicial Committee of the Privy Council recommended that his death sentence should be commuted to life imprisonment in a landmark ruling for the Caribbean, Earl Pratt will be released this month from prison.

"The Department of Correctional Services is awaiting a formal notification regarding the status of parole applicants for May 2007," Major Richard Reese, commissioner of corrections, disclosed yesterday.

The Gleaner understands that Pratt, now in his 50s, and another high-profile inmate, Mary Lynch, 62, who was convicted for killing her husband in the early 1990s, are likely to be released as early as next Friday, but Commissioner Reese is awaiting the parole unit to complete the paper work.

The 1994 Privy Council ruling was a landmark case for Pratt and his long-time friend, Ivan Morgan, who later died of natural causes in prison. Both were sentenced to death for the October 6, 1977 murder of Junior Bissick. On three separate occasions the death warrant was read to them and they were removed to the condemned cells, located next door the gallows, at the St. Catherine correctional facility, the maximum-security prison in the parish.

Breach of their rights
But after waiting more than five years to be executed, the U.K. Privy Council cited a breach of their constitutional rights, under Section 17 (1) of the Constitution Act, which provides that 'no person shall be subjected to torture or to inhuman or degrading punishment'. This was after they had appealed the case.

The Privy Council recommended in 1994 that because Pratt and Morgan were on death row for more than five years after their conviction, they should not be hanged. At the time, the recommendation of the UK Privy Council provided reprieve for 110 other death row inmates in Jamaica, who were also waiting for more than five years to be executed. No one has been hanged in Jamaica since 1988.

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 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.