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Transcript of grenadabar.comgrenadabar.com/.../05/EHCsirarchibaldneddlectureFINAL.docx · Web viewTonight I want...
ACCESSING THE APPELLATE JURISDICTION OF THE
CARIBBEAN COURT OF JUSTICE - THE BELIZE EXPERIENCE!
The 16th Sir Archibald Nedd Memorial Lecture
Presented by Eamon H. Courtenay SC
The Grenada Trade Centre
Grand Anse, Grenada
26 April 2016
Introduction
Allow me to begin by offering my deepest thanks to
President Ruggles Ferguson and the Executive members of
the Grenada Bar Association for the very warm welcome and
excellent arrangements for my visit. Ruggles has fully
complied with his promise to provide me with the best
Grenadian hospitality on this visit.
I also wish to salute the Grenada Bar Association for
successfully organizing this distinguished lectures series.
The Association has been doing so for some two decades.
This is an impressive record of achievement. It also
demonstrates the Association’s commitment to faithfully
fulfilling its duty to provide public legal education to your
citizens.
It is an honour to have been invited to join the
impressive list of persons who have delivered previous
speeches in the lecture series. The list is a veritable
constellation of the region’s leaders. This lecture series is a
fitting tribute to the memory of Sir Archibald Nedd a
distinguished jurist who recognized and enforced human
2
rights and constitutional rights long before it was fashionable
to do so. Lets hope that this evening’s encounter will live up
to the standard of those that went before.
Twenty years ago, a legendary Queen’s Counsel,
delivered the 1st Sir Archibald Nedd Lecture. The paper by J.
S. Archibald QC was titled: “Essentials for a West Indies
Supreme Court to replace the Judicial Committee of the Privy
Council as the final Appellate Court for Commonwealth
Caribbean States and Territories.”
Today, we know what those essentials are – there is
model legislation freely available and expertise abounds in
the region on the process to adhere to the Caribbean Court
of Justice. I suspect that the invitation extended to me was
prompted by my personal and professional experience
before the Court. But I cannot, and will not, deliver an
academic exposition on the nearly 20 cases that have so far
reached the CCJ from Belize. I don’t believe that this is the
occasion for an academic lecture.
3
I am here as a citizen of the Caribbean Community. I
will speak from a deep commitment to regionalism.
Unapologetically and proudly, I speak as a supporter of the
Caribbean Court of Justice. We the people of the Caribbean
decided to live as a Community. We agreed to establish a
Single Market and Economy. We faithfully and solemnly
signed the Agreement Establishing the Caribbean Court of
Justice.
And so brothers and sisters of Grenada, Carriacou and
Petite Martinique, this is your year. Our common
commitment to a deeply integrated Region impels you to
seriously consider joining the CCJ.
PART I - The Caribbean Court of Justice
On Valentine’s Day in 2001, at a Heads of Government
meeting of CARICOM in Bridgetown, Barbados, Prime
Ministers and Presidents of Antigua & Barbuda, Barbados,
Belize, Grenada, Guyana, Jamaica, St Kitts & Nevis, St Lucia,
Suriname and Trinidad & Tobago signed the Agreement
Establishing the Caribbean Court of Justice. On the following
4
day, the Prime Ministers of Dominica and St Vincent and the
Grenadines appended their signatures. The Agreement
entered into force when three countries deposited
Instruments of Ratification with the Secretary General of
CARICOM.1 However, the CCJ was not inaugurated until 16
April 2005, so that it was only last year that the Court
actually celebrated its historic 10th anniversary.
As we all know, the CCJ has original and appellate
jurisdictions. In so far as the original jurisdiction is
concerned, most CARICOM member states are subject the
Court’s compulsory jurisdiction. Grenada is subject to the
CCJ’s original jurisdiction when it comes to the enforcement
of the Revised Treaty of Chaguaramus. We therefore have
the rather anomalous situation, which is not unique to
Grenada, where the CCJ is recognized as a part of Grenada’s
judicial architecture for one purpose but not for appeals.
Tonight I want to share with you the interesting story of
how Belize accessed both the original and appellate
jurisdictions of the CCJ. Then I will take a look at what our
1 Agreement Art. XXXV
5
experience has been like since we accessed the appellate
jurisdiction in 2010. And finally, I will take the liberty to
express some views on the proposed amendments to the
Grenada Constitution.
Belize and the CCJ
Partisan politics rules small Caribbean societies. Belize
is no different. Because of politics, and the divisiveness
which characterizes our politics, quite often the larger
national purpose is sacrificed. Belize’s history with the CCJ
was at one point victim to this phenomenon which I believe
is present across the region.
As mentioned earlier, Belize was proudly one of the
countries that signed the Agreement that established the
Court on Valentine’s Day in 2001. Thereafter, Belize
participated in the very important regional meetings that
planned and prepared the arrangements that were required
to make the Court functional. In other words, Belize played
an active part in the historic mission that was designed to
finally transfer judicial sovereignty to our indigenous Court,
6
and also to deepen the integration movement by
establishing a court to finally resolve treaty disputes.
Once the regional requirements were nearing
completion, Belize moved to implement the legal and
constitutional measures needed to access the Court. On the
regional level, in 2003 and 2004 Barbados, St Lucia, St
Vincent, Suriname were taking the steps needed to
domesticate the CCJ. These moves were of course followed
by the very interesting Jamaican experience (a matter to
which I will later refer). Except for Barbados, where the
Government had the majority needed to amend the
Constitution and did so, the other territories were enacting
legislation to make the Court a part of local law, even though
they could not de-link from the Privy Council and move to
the CCJ in its appellate jurisdiction.
The First Foray – a bridge too far
Before the Court was inaugurated in 2005, Belize made
an unsuccessful attempt to de-link from the Judicial
Committee of the Privy Council and to ready itself for the
7
advent of the CCJ. In 2004, two Bills were introduced in the
House of Representatives of Belize: a) the Belize Constitution
(Fifth Amendment) Bill, 2004, and b) the Caribbean Court of
Justice Bill, 2004.
One of the main objectives of the Fifth Amendment to
the Belize Constitution was to de-link from the Privy Council
and to provide for final appeals to the CCJ in civil and
criminal matters. However, for it to pass in the House of
Representatives, it needed to satisfy the requirements of
section 69 of the Belize Constitution.2 These are:
a. 90 days had to elapse between the first and second
reading of the Bill;
b. passage of the Bill had to be supported by not less
than three-fourth of all the members of the House;
and
c. When submitted to the Governor General, the Bill
had to be accompanied by a certificate certifying
compliance with the two other constitutional
requirements.
2 Cap. 4 of the Substantive Laws of Belize, Rev. Ed. 2011
8
With respect to the CCJ Bill, which sought to
domesticate the Court in both its appellate and original
jurisdictions, to make the Agreement establishing the Court
a part of the local law and for matters related thereto, being
an ordinary Bill it merely required a simple majority to be
passed into law.
In 2004, the Government did not enjoy a three-fourths
majority in the House of Representatives. In order to pass
the Fifth Amendment and access the CCJ, the support of the
Opposition United Democratic Party was required.
The Government initiated consultations with the
Opposition quite early in the process. The Opposition
indicated that it would support the passage of the Bill.
Indeed in 1996 when the United Democratic Party was in
Government it had formally stated that it intended to
introduce legislation to de-link from the Privy Council.3 In the
event it did not. As part of its argument at the time, the UDP
said the de-linking “was clearly an issue of sovereignty.”
3 Channel 5 Television September 1996
9
Again, in 2002, the UDP, then in Opposition, wrote to
the Government strongly advocating the abolition of appeals
to the Privy Council in criminal matters only. At this time the
CCJ had not yet been inaugurated although Belize had
signed the Agreement to establish the Court.
Two years later in 2004, the Government proposed the
Fifth Amendment to the Constitution. Surprisingly,
notwithstanding this history the UDP did not support the
amendment to the Constitution.
Making the Case
On Friday 16 July 2004, the House of Representatives
debated Caribbean Court of Justice Bill, 2004, not the Belize
Constitution (Fifth Amendment) Bill 2004. The debate was
robust.
The Hon. Godfrey Smith, the then Minister of Foreign
Affairs, led the charge in support of the Bill. He immediately
framed the debate within the regional context:
“So today, Madam Speaker, it is Belize’s turn and the people of Belize, through us, their duly elected representatives, will decide here today whether we,
10
Belizeans, whether we as a country, wish to be a part of a historical regional movement and historic regional institution that will represent our evolution to full constitutional sovereignty. Indeed, Madam Speaker, I can say that the eyes of the entire Caribbean Community are upon us. The eyes of the region are upon us. Our decision today is important, not only [for] the success and vitality and vigour of the operation of the court, but, indeed, for the future of the entire regional movement.”4
The Minister was in no doubt as to the importance of
the mission the House had embarked upon. He said:
“… the Caribbean Court of Justice is of supreme significance both to Belize and to the region. Madam Speaker, we are fully appreciative and cognizant of the fact that no innovation of this nature, or, indeed, revolution of this kind comes easily. And I believe that, not only do we have a historical duty to and obligation to this National Assembly, but we do also to Belize and the region to leave no doubt in anybody’s mind that we are absolutely, on this side, convinced of the correctness of our course of action.”5
4 House of Representatives debate 16 July 2004 5 House of Representatives debate 16 July 2004
11
He then presented a detailed historical resumè of the
regional efforts leading to the establishment of the Court and
then deployed five separate reasons in support of the
passage of the Bill. Whilst none of them will surprise you, it
is important to capture them succinctly.
First, he said “I count among the most formidable
arguments in favour of the Caribbean Court of Justice, the
issue of sovereignty and independence.”6 He then argued in
favour of the CSME “Without the Caribbean Court of Justice,
we will … seriously compromise and jeopardise the future of
the single market and economy.”7 The third argument
advanced was “… that the establishment of the Caribbean
Court of Justice will mean fuller access [to justice], not only
for Belizeans, but for the people of the region.”8 Next, he
argued in favour of the development of “a Caribbean
jurisprudence” by the Court. In his view, by replacing the
Privy Council with the CCJ “… it will be left to our own local
jurists to craft reasoning, to craft decisions more in line with
6 House of Representatives debate 16 July 2004 7 House of Representatives debate 16 July 2004 8 House of Representatives debate 16 July 2004
12
our regional culture, more in line with our social mores and
social thinking, Madam Speaker.”9 The Foreign Minister then
cited statistics that showed that the level of awareness and
support for the CCJ was “as high as 72% and 80%”
respectively10. After presenting these five reasons in support
of the Court and passage of the Bill, he responded to several
concerns which he was aware of and which he felt had been
legitimately raised.
The concerns were: a) possibility of political
interference with judges of the Caribbean Court of Justice; b)
the possible lack of financial independence of the Court; c)
would the judges would be of a sufficiently high calibre; and,
d) why was money being spent of a regional institution
instead of improving the local justice system. He then
provided comprehensive explanations seeking to allay the
fears of those who raised these concerns.
Persuasive though the arguments were, they did not
carry the day.
9 House of Representatives debate 16 July 200410 House of Representatives debate 16 July 2004
13
Yes to the No – Parochial Politics Prevail
The Opposition did not support the passage of the
Caribbean Court of Justice Bill, 2004. They advanced four
separate reasons to justify their no vote.
To be fair, the UDP insisted that, in principle, it
supported the CCJ. But in order to garner its support in the
House of Representatives, the Opposition insisted that the
Government satisfy certain conditions. The Opposition
framed its position in this way:
“At a meeting of the its National Party Council on Saturday June 26, 2004, the United Democratic Party agreed in principle to support the Caribbean Court of Justice and the Belize Constitution (Fifth Amendment) Bill. The Party feels that the CCJ could be a good thing. A bid for regional advance should be matched by local progress and systemic reform. Otherwise overall domestic frustration might render the Caribbean Court of Final Appeal almost pointless.”11
In the debate in the House of Representatives, an Opposition
representative put it more starkly:
“They are asking us, Madam Speaker, to treat this issue of the Caribbean Court of Justice on its own merits….
11 Letter dated 28 June 2004 from Hon Dean Barrow, Leader of the Opposition to Prime Minister Hon Said Musa
14
We cannot separate the Caribbean Court of Justice from the suffering that our people are experiencing out there.”12
In simple terms, the Opposition demanded compliance
with certain domestic requirements as condition for
supporting the Fifth Amendment. What were the conditions?
The first demand from the Opposition was for an
amendment to the Constitution to insert a ceiling for the
national debt. The Government rejected this on the basis
that placing a limit on the public debt was not a measure fit
for insertion into the Belize Constitution.
The Opposition stressed good governance. They called
for an amendment to the Finance and Audit Act that would
require the Government to “bring loans in excess of $10
million to the National Assembly for ratification.”13
The next request of the UDP Opposition was
transparency. It had been clamouring for public disclosure of
government contracts including contracts with Print Belize
Limited, Belize Telecommunications Limited and Jeffrey
12 Hon. John Salidvar, House of Representatives debate 16 July 200413 Hon. Patrick Faber, House of Representatives debate 16 July 2004
15
Prosser, an exclusive contract between Royal Caribbean and
Government, and concession agreements for the airport and
the seaport. To this end, the Opposition demanded an
amendment to the Freedom of Information Act to enable “a
person to make a request to the Contractor General for
information in respect of a government procurement or sale
contract of or above the value of US$1 million of BZ$2
million. The Contractor General shall in pursuant [sic] of a
request … provide the person … a written summary of
essential elements of the contract.”14 The request was
unrequited. I will return to this point later on in this
presentation.
The Opposition turned next to the disposal of public
assets by the Government. Specifically, their ask was “in
terms of public assets, … [disposal of] public assets valued
at over $2 million would be brought to the House before they
are sold off for approval.”15 Again, this is an issue to which I
will return later on.
14Hon. Patrick Faber, House of Representatives debate 16 July 2004 15Hon. Patrick Faber, House of Representatives debate 16 July 2004
16
Fourthly, the Opposition demanded parliamentary
reform. They insisted that the Standing Orders for the House
of Representatives be amended to enable, two instead of
three members of the Standing Committees to convene a
meeting on an urgent matter. And the Opposition requested
an increase in the amount of the community vote for all
members of the House of Representatives.
The Government’s riposte to these several demands
was hell no! The Hon Francis Fonseca, the Minister of
Education put it graphically:
“And what’s troubling is why the UDP is saying no to the CCJ. Madam Speaker, no, their arguments are not about costs or concerns, about political influence or the competence of regional judges, none of that. … Rather, they said to themselves – the PUP needs our vote for this CCJ to happen – so we need to get something for this to happen, plain outright, unapologetic political extortion. Not to further the national interest, but to further the agenda of a few small-minded, petty, very angry out of control UDPs.”16
16House of Representatives debate 16 July 2004
17
In this poisoned atmosphere, the question was put and
a division called. The vote was strictly along party lines – 21
PUP 8 UDP. So the ayes had it. But the victory was pyrrhic!
Whilst the Caribbean Court of Justice Bill 2004 passed
recognizing the original jurisdiction only, the Government,
lacking the three-fourths majority required to alter the
Constitution, immediately announced that “owing to the lack
of vision expressed on the other side the Government will
not be proceeding with the Belize Constitution (Fifth
Amendment) Bill 2004 at this time.”17 How then did Belize
accede to the appellate jurisdiction of the CCJ?
‘Once more unto the breach’
General elections were held in Belize February 2008
and the United Democratic Party under Prime Minister Dean
Barrow was ushered into office in a landslide. The UDP won
25 of the 31 seats thereby gaining an eighty percent
majority – a super majority conferring on them the power to
alter the Constitution without the support of the Opposition.
17 Hon Godfrey Smith, House of Representatives debate 16 July 2004
18
On the 1st April 2010, the Belize Constitution
(Seventh Amendment) Act was enacted which, inter alia,
removed the Privy Council as the final appellate court for
Belize and replaced it with the Caribbean Court of Justice.
The debate on the Bill was anti-climactic in so far as the
CCJ was concerned. It was referred to merely in passing
because other more controversial provisions in the Bill
overshadowed the CCJ provisions. In fact, only five of the 31
parliamentarians joined the debate on the Bill. Additionally,
the People’s United Party, which was now in opposition, had
not changed its support for the CCJ in its full remit. Therefore
the issue on the debate was not well and truly joined.
The Court was inaugurated in April 2005; it took five
years before Belize acceded to the Court’s appellate
jurisdiction. A delay attributed exclusively to parochial
politics. But you know what, we got there!
I now turn to some comments on the experience since
Belize actually accessed the Caribbean Court of Justice.
The Original Jurisdiction
19
So far, there has only been one case from Belize in the
original jurisdiction, Tomlinson v Belize.18 In this case, the
Applicant has challenged section 5 of the Immigration Act
which defines homosexuals as prohibited immigrants
thereby authorizing immigration officers to refuse entry to
homosexuals. Tomlinson has asserted that “the very
existence of the impugned Immigration Acts constitutes
prejudice, whether or not the governments of these States
have in the past applied or intend in the future to apply the
prohibition by refusing entry to homosexuals.”19 This case
has been fully argued and judgment is awaited.
The Appellate Jurisdiction - An Enriching Experience
a. Access: video conferencing; itinerant; special leave
It is right that I state the obvious, because I say it based
on experience. The CCJ is decidedly more accessible to
litigants and to attorneys-at-law. There is a fully staffed
professional registry that responds timeously, and is
18 [2014] CCJ 2 (OJ)19 Ibid @ [5]
20
understanding of the practice of litigation. The difference
with the Privy Council, is that that type of access is reserved
for London-based solicitors and not to us practitioners in the
Caribbean.
Do not underestimate the value of video hearings. I
have participated in many. The point is that the Court is
available, even without physically leaving your jurisdiction.
This is important for litigants – they can attend case
management conferences, applications and actual appeals
at an affordable cost. Whilst Port of Spain may be ‘a hop
away’ from St George’s, it is a hop and a skip and a jump
away from Belize.
The Court has sat in each Barbados and Guyana; and in
Jamaica in the Myrie Case – an original jurisdiction case. In
May 2015, the CCJ sat in Belize for a week and heard cases
from Belize and other jurisdictions.
Special Leave
The CCJ has construed the relevant legislation of
Barbados, Guyana and Belize to mean that even where a
party has a right of appeal from the Court of Appeal to the
21
CCJ as of right, an application can be made directly to the
CCJ for special leave.20 I bring this up at this point simply to
underscore that one benefit of this interpretation is that in
appropriate cases the two-stage process of applying for
provisional leave and then final leave, attendant with the
inevitable delay, may be avoided by having direct access to
the CCJ.
b. Irony – Marin & Coye & BCB Holdings
The first judgment from the CCJ in a case from Belize
was in 2011 and was about misfeasance in public office. In
essence, the question was whether the Attorney General
could maintain a claim against two former ministers of
government alleging that during their respective terms of
ministerial office, they arranged the transfer of 56 parcels of
State land to a company beneficially owned and/or
controlled by one of them. It was contended that this was
done at a gross undervalue, without lawful authority and in
bad faith. The issue on appeal was whether the AG could
20 Barbados Rediffusion Service Limited v Mirchandani (2005) CCJ 1 (AJ); Griffith v Guyana Revenue Authority [2006] CCJ 1 (AJ); Christopher Salt et al v Kaupthing Singer & Friedlander Limited [2016] CCJ 8 (AJ)
22
maintain the claim against, as it were, former officers of the
government?
It is ironic that the first judgment from the CCJ would be
in a case in which the Government sought to recover
damages against former ministers of government21. Ironic
because one of the conditions that the Opposition had asked
for back in 2004 in exchange for its support of the Fifth
Amendment to the Constitution, was legislation that would
have required the Government to bring to the National
Assembly a resolution authorizing disposal of public assets.
The parcels of land in question were sold by the State
between December 2007 and February 2008 considerably
after the House debate.
By a 3-2 majority the CCJ held that the AG was
competent to bring the Claim. This was a precedent setting
decision.
“I concede that an action of the kind initiated by the Attorney General in this case is to all intents and purposes unprecedented and that from one perspective centuries of forensic thought and assumptions could be
21 Marin & Coye v The Attorney General of Belize [2011] CCJ 9. The former ministers prevailed at trial.
23
taken to lean against his proceeding. I equally admit that to allow this suit could have significant implications for the role of the State in the law of torts. To recognize competence in the Attorney General to bring this suit naturally raises the prospect of the Crown suing, possibly as parens patriae, in a host of other torts including trespass, nuisance and negligence. However these are matters for another day. What to my mind is presently obvious is that none of these concessions can be a sufficient reason to deny the logic of the developments in the tort of misfeasance in public office which have in this case converged with the evolution of the corporate nature of the State in the law of torts. To the contrary these developments may well portend the welcome emergence of a new matrix of causes of action hitherto frozen in their historical crypts and now animated by judicial imprimatur.”22
This is but one case in which the judges of the CCJ have
answered the questions posed by Hon Dr. Kenny Anthony,
Prime Minister of St Lucia in the 5th Sir Archibald Nedd
Lecture: “So the opportunity to finally shape our own
jurisprudence … is immediate and compelling. But will it
happen? Will the reshaping of our jurisprudence take place? 22 Marin & Coye v The Attorney General of Belize [2011] CCJ 9 per Anderson JCCJ @ [152]
24
Will our jurists and practitioners and academics take up the
challenge?”23 The answer is a resounding yes!
In a different case in 2013, international arbitrators had
awarded substantial damages against the Government of
Belize in favour two companies which sought enforcement of
the Final Award. the case reached the CCJ where
enforcement was refused.
The CCJ was called upon to answer the following
question: whether it would be contrary to public policy to
enforce an arbitration award which arose from a confidential
agreement that “construct[ed] in careful detail a special tax
regime reserved for the Companies; a regime that all parties
readily acknowledge is at variance with the extant revenue
laws of Belize and one which conferred significant benefits
on the Companies.”24 In reaching its decision the Court said:
“Prime Ministerial governance, a paucity of checks and balances to restrain an overweening Executive, these are malignant tumours that eat away at democracy. No
23 See also Juanita Lucas, Celia Carillo v The Chief Education Officer et al [2015] CCJ 6 (AJ) in a tightly contested 3:2 decision, the CCJ gave anxious consideration to whether there was a breach of the right to the protection of law and what should be the appropriate remedy in such circumstances.24 BCB Holdings Limited & Anor v The Attorney General of Belize [2013] CCJ 5 (AJ)[34]
25
court can afford to encourage the spread of such cancer. In our judgment, implementation of the provisions of the Deed, without legislative approval and without the intention on the part of its makers to seek such approval, is indeed repugnant to the established legal order of Belize. In a purely domestic setting, we would have regarded as unconstitutional, void and completely contrary to public policy any attempt to implement this Agreement.”25
Déjà vu! In 2004, one of the planks on which the
Opposition justified its refusal to support the CCJ was a call
for legislation that allowed disclosure of contracts, such as
this one, that were executed by the Government in strict
confidence and without legislative approval. The confidential
agreement in question was signed in 2005, after the 2004
debate, and was only publicly disseminated after the
Government changed in 2008!
These cases send a loud and clear message to
politicians, and more importantly to Caribbean people across
the Region – the CCJ is alive to transparency and
accountability in public affairs.
25 BCB Holdings Limited et al v The Attorney General of Belize [2013] CCJ 5 (AJ) [53]
26
c. Respectful of the Court of Appeal – Boyce; August
I have expressed the view that one of the hallmarks of the
CCJ is accessibility, but the Court has also exercised restraint
and respect for the lower courts in Belize.
In one case, the Applicants successfully challenged two
nationalizations by the Government before the Court of
Appeal. The Court of Appeal having granted declarations of
unconstitutionality did not issue any consequential orders for
the return of the property. The Government declined to
return the property. The successful Appellants, being unable
to get emergency relief from the Court of Appeal, applied to
the CCJ to challenge the failure of the Court of Appeal to
grant consequential relief and sought orders from the CCJ
that would enable them to recover their property. Shortly
after the application was filed and pending before the CCJ,
the Government renationalized the property pursuant to new
legislation that sought to cure the defects identified by the
Court of Appeal when it struck down the acquiring
27
legislation. The Applicants filed a fresh challenge to the 2011
legislation in the Belize Supreme Court.
At the CCJ level, the Appellants argued that the CCJ had
jurisdiction to consider and declare void the new legislation
that had re-nationalized the property without the Appellants
having to await the outcome of the new Supreme Court
cases. When the matter came before the CCJ for case
management, special leave having been earlier granted, the
Court stayed the Appeal. It stated:
“22. Without delving into and thus commenting one way or another on the issue of whether we possess jurisdiction to do what the Appellants have asked of us, we are prepared to agree with the Appellants that fundamentally, the decision to stay or not stay these appeals is a matter of judicial policy. The operation of that policy requires us to have full regard to the nature of the legal and constitutional challenge being made to the 2011 legislation…. Against that background, we consider that before this Court rules on the challenge it would be more appropriate first to hear the views of the courts below. The circumstance that, as compared with the London based Privy Council, it cannot be said either that we are ‘a distant court‘ or that we lack ‘familiarity
28
with local conditions’ is quite beside the point. The views of the judges below in the light of the continuous refinement of counsel’s submissions as the case progresses through the system as well as any learned comment in academic journals are not to be discounted. These opinions constitute vital material helping to inform and shape the views of a final court….”26
In the first criminal appeal from Belize to the CCJ, the
Court again adopted this policy of judicial restraint and a
desire to have the benefit of the views of the Belizean lower
courts before hearing an appeal.27 The Appellant, in addition
to challenging his conviction which was confirmed by the
Court of Appeal, raised in his CCJ Notice of Appeal the
constitutionality of the mandatory sentence of life
imprisonment without the possibility of parole.
Deferentially, the CCJ has stayed the appeal and
remitted it to the Court of Appeal for it to give its views on
the constitutionality of the sentence – the decision of the
Court of Appeal is pending.26 Boyce and British Caribbean Bank Ltd v AG of Belize & Anor [2012] CCJ 1 (AJ) (R) @ [24]27 Gregory August v The Queen BZCR2015/001
29
d. Flexibility – Maya Leaders/BCB and Boyce and Fortis
The final point I wish to make regarding the CCJ and the
practice as developed by Belizean cases, is that of the
Court’s flexibility in dealing with major cases. I cite two
examples.
The nationalization cases, which I mentioned earlier,
raised some of the most important constitutional law issues
ever argued before the Court. These included whether the
Basic Structure Doctrine applied in Belize, whether the
Legislature’s power to alter the Constitution was subject to
any limitation other than the manner and form requirements
set out in section 69 of the Belize Constitution, and can an
amendment to the Constitution be inconsistent with another
section of the Constitution (especially a fundamental right
provision) and still be valid. After full argument, and whilst
awaiting the Court’s decision, the Government and the
former property owners settled their differences. But, the
settlement was pursuant to agreements which required the
Government to complete certain actions, therefore the
30
parties jointly sought Tomlin Orders from the Court. The
Court granted the Orders. The Orders enable the former
property owners to go back to the CCJ directly to enforce the
terms of the settlement if needs be. Whilst the differences
have been finally settled, the Court does retain limited
jurisdiction over the parties.
Interestingly, the Bar Association applied to the CCJ to
hand down its decision notwithstanding the settlement of the
parties in order to clarify the major constitutional law issues
that had been ventilated; this was refused.
In the Maya Land Rights case, in which the Court of
Appeal held and the CCJ confirmed “that Maya customary
land tenure exists in the Maya villages in the Toledo District
and gives rise to collective and individual property rights
within the meaning of section 3(d) and 17 of the
Constitution.” At the request of the parties, the CCJ issued a
Consent Order accepting “the undertaking of the
Government to adopt affirmative measures to identify and
protect the rights of the Appellants arising from Maya
customary tenure, in conformity with the constitutional
31
protection of property and non-discrimination….” In order to
achieve these and the other orders of the Court, “the Court
retains jurisdiction to oversee compliance with this Order
and sets 30th April 2016 for reporting by the parties.” 28 The
CCJ continues to actively oversee this case.
I would contend that these two examples reveal the
CCJ’s unique sensitivity to local circumstances. And they give
life to “The overriding objective of [the CCJ’s] Rules … to
ensure that the Court is accessible, fair and efficient and that
unnecessary disputes over procedural matters are
discouraged.”29
I conclude this part of my presentation by quoting from
Sir Dennis Byron, who reviewed cases from Belize in a
speech in 2015 and concluded: “As the Court approaches its
10th Anniversary I am confident that we will continue
assiduously to develop a rich vein of Caribbean
jurisprudence.”30
28 The Maya Leaders Alliance etal v. The Attorney General of Belize [2015] CCJ 15 (AJ) @ [9]29 Rule 1.3 Caribbean Court of Justice Appellate Jurisdiction Rules 2015 30 A paper presented at the Bar Association of Belize Law Conference 2015, January 15 2015.
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PART II
Grenada is currently engaged in a very interesting
process of constitutional reform. This process is the highest
and most solemn expression of the constituent power of the
people.
The Grenada Constitution provides in section 39 for a
referendum to be passed to amend the most significant
sections of the Constitution – this is without doubt a
celebration of the constituent power of the people. The need
for a two-thirds vote in the House of Representatives also
signals that the framers of the Constitution intended to
delegate power to amend the Constitution to the House of
Representatives, but this power could only be exercised by a
special majority of the people’s representatives.
From what I have observed, the consultation process
undertaken so far, seeks to build the necessary national
consensus which is absolutely required for the legitimacy of
this process. There should be no mistake as to the
significance of this process, or any underestimation of the
power of the people. The power to undertake such
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fundamental reform of the Grenadian Constitution rests
exclusively with the citizens of Grenada, Carriacou and Petite
Martinique. In recognizing the importance of the constituent
power of the people in the process of constitutional reform,
the High Court of Kenya said (paraphrasing):
“With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgment that in a democracy, and [Grenada] is one, the people are sovereign. The sovereignty of the [State] is the sovereignty of its people. The [State] is its people, not its mountains, rivers, plains, its flora and fauna or other things and resources within its territory. All Governmental power and authority is exercised on behalf of the people. The second stop is the recognition that the sovereignty of the people necessarily betokens that they have a constituent power - the power to constitute and/or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution.”31
31 Njoya et. al. v. Attorney General et.al.[2004] LLR 1, @ p. 12
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And so tonight I say to the people of Grenada you have
the power! As you continue this process remember your
history. In just over forty years you have lived the evolution
from colony to independent state. You have experienced the
revolution which interrupted the Westminster constitutional
order. And you witnessed the counter-revolution that re-
established the present constitutional regime. I urge you to
draw on this unique and rich constitutional history to
examine the proposed amendments to the Constitution.
Examine them critically; and ask the important questions:
Will these changes promote “the ideal of free men [and women] enjoying freedom from fear and want?”
Will they create conditions “whereby everyone enjoys economic, social, and political civil and cultural rights?”
Do the changes truly “respect the rule of law?”
Because it is the Preamble to the Constitution that says that
Grenadians “desire that their Constitution should reflect
[these] … principles and beliefs which represents those high
ideals on which the nation is founded.”
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There are several of the proposals that merit comment.
But in the interest of time I will confine my comments to
three of the proposals.
Caveat
I have no intention to delve into the political debate
surrounding the proposed amendments. My comments are
personal observations and not intended to influence the
debate in any way. I want to say quite specifically that
nothing that I say should be regarded as criticism or should
be used to justify a vote one way or the other in the
referendum.
Supreme Law Clause
Firstly, the Supreme Law Clause. You propose to move
it up to a more prominent place in the Constitution, and
rightly so. But what does the section really mean? It states:
“if any other law” is inconsistent with the Constitution then
“this Constitution shall apply, and the other law shall, to the
extent of the inconsistency, be void.” But can an
amendment to the Constitution be “a law” for the purposes
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of this section? What do I mean? If the Legislature passes an
amendment to the Constitution that appears to be
inconsistent with another section of the Constitution, which
prevails, or do they co-exist? This is not far-fetched, and the
legal answer to the question remains unsettled.
I had earlier referred to the nationalization cases in
Belize. The Government had nationalized the main telephone
company, a bank loan and the main electricity company.
Pursuant to sections 3(d) and 17 of the Belize Constitution,
the property owners were entitled to challenge the
nationalization itself as well as to challenge the amount of
compensation offered by the Government. They did so and
succeeded at the Court of Appeal in June 2011. The
Government re-nationalized the companies and the owners
launched a second challenge.
Whilst the cases were wending through the Courts, the
Government passed the Belize Constitution (Eighth
Amendment) Act to essentially provide the following:
adding a new Part XII to the Constitution (sections 143-145), thereby purporting to enshrine in the Constitution
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a requirement for majority Government ownership of "public utilities";
declaring that the acquisition of the property under the 2011 Act and Order were for a "public purpose";
excluding from the words “other law” appearing in section 2 of the Constitution, any law that alters the Constitution; and
adding the following declaration to section 69 of the Constitution: "there is no limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution". It must be readily apparent that these amendments
presented the property owners with an incredible array of
legal obstacles established at the constitutional level.
In anticipation of a challenge to these amendments to
the Constitution, the Supreme Law Clause was amended to
state that “other law” appearing therein does not include a
law to alter any of the provisions of the Constitution. This
was obviously designed to force the Courts to conclude that
an amendment to the Constitution could not be struck down
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for being inconsistent with the Supreme Law Clause.
According to the Prime Minister:
"The whole purpose of putting control of the utilities into the Constitution is to make that control unassailable. But Lord Ashcroft, for one, is already seeking in the Caribbean Court of Justice to prevent the very passage of the amendment to constitutionalise the control. To allow him, even after passage, the ability to have a Court strike down the amendment, would be truly to frustrate the sovereign will of the Belizean people.”32
Again, as mentioned earlier, these heavily contested
appeals were settled before the CCJ handed down its
judgment on this vitally important issue. At the level of the
Court of Appeal, however, the Eighth Amendment was
declared valid by a majority decision with Mendes JA (as he
then was) writing a powerful dissent.33 However, the Court
was unanimously of the opinion that the amendment to the
Supreme Law Clause was constitutionally compliant.32 Open Letter dated 15 August 201133 The Attorney General of Belize & The Minister of Public Utilities v The British Caribbean Bank Limited; The Attorney General of Belize & The Minister of Public Utilities v Dean Boyce & Trustees of the BTL Employees Trust; Fortis Energy International (Belize) Inc v The Attorney General of Belize & The Minister of Public Utilities
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So I leave this with you as food for thought: can the
Grenada High Court strike down an amendment to the
Constitution relying on the Supreme Law Clause? More
controversially, what power would the High Court have if a
government inserted into the Grenada Constitution an
amendment equivalent to the “John Derek Knight Assets
(Vesting in Government) Law 1979”? Could that amendment
be challenged by reliance on the Supreme Law Clause?
Further, would such a law sit compatibly with section 6 of the
Grenada Constitution? What if they are on their face
inconsistent?
This is not far-fetched. We have seen Governments in
our Caribbean Community being actuated by political and
personal motives using the powers of the State to directly
take the private property of individuals. And in doing so, they
go to great lengths to advance their objective and our Courts
continue to grapple with these challenges. I commend to you
the dissenting Judgment of Wit JCCJ in Lucas and another v
Chief Education Officer and others where he calls on
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judges and counsel to assist the Court in developing the
common law to meet the exigencies of new scenarios.34
Directive Principles
Indubitably, the addition of the Directive Principles of
State Policy reflects a healthy maturation of Grenadian
society. One can expect that those to whom they apply will
regard them as weighing heavily on them and informing and
influencing their actions and the performance of their
functions.
The draft clause provides that they are not legally
enforceable like they are in some other constitutions. This
clearly begs the question: why not? The answer is not for me
to say.
Tonight, I am more interested in the legal effect of their
inclusion in the Constitution. It would seem to me that the
Directive Principles of State Policy although not legally
enforceable, per se, are quite likely to have legal
consequences. According to the proposed clause 18N, “… it
is the duty of the organs of the state … to be guided in the 34 [2015] CCJ 6 (AJ)
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discharge of their functions by the principles … for these are
directive principles of state policy.” What is intended by this?
Can a claim be brought by an aggrieved person against
a public officer for failing to perform his/her duty to be
guided, or sufficiently guided by one of the Fundamental
Directives when taking a decision? Can a decision be
judicially reviewed on the basis that it was taken without
sufficient regard for a particular Fundamental Directive? I
pose these questions to highlight the urgent need to educate
public officers (used in the widest possible sense) specifically
and the public generally as to the role of these Fundamental
Directives in order that they can be given life.
Caribbean Court of Justice
Let’s return to the main topic of this evening – the CCJ. I am
not au fait with the prevailing attitude of the good people of Grenada
towards the CCJ. But my research reveals that between 1847 and the
present – some 169 years – the Privy Council has only handed down
twenty-one judgments by in cases coming from Grenada. That is, in my
view, proof positive that access to the Privy Council by Grenadians is
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quite illusory. If there was any compelling reason to reconsider the link
to the Judicial Committee – lack of access is a powerful reason for the
people of Grenada.
I urge the insertion a clause which provides that the CCJ “shall, in
relation to any appeal to it in any case, have all the jurisdiction and
powers possessed in relation to the case by the Court of Appeal.”35 A
similar section appears in section 11(6) of the Caribbean Court of
Justice Act of Guyana. It was relied upon by the CCJ to add a party to a
claim at the level of the CCJ.36 There is no good reason why it should not
be in the Grenadian Constitution which is actually establishing the
jurisdiction on the CCJ.
Next, I suggest that it is vitally important to fully set out the status
and jurisdiction of the appellate jurisdiction of the CCJ in the
Constitution. Whilst it is established by an Agreement, the appellate
jurisdiction to be exercised by the Court in Grenada will be as is
expressed in the Constitution. There should be no room for doubt as to
the ability of the CCJ to exercise inherent jurisdiction of a superior court
of record. Therefore, I propose the addition of a clause that says: “In the
exercise of its appellate jurisdiction, the Caribbean Court of Justice is a
35 Belize Constitution s. 104(5)36 Sheermohamed v S.A. Nabi and Sons Limited [2011] CCJ 7 (AJ)
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superior court of record for Grenada, with such jurisdictions and powers
as are conferred on it by the Agreement or this Constitution or any other
law.”37 The last four words are important as they are wide enough to
enable the Court to exercise the common law and to exercise its
inherent jurisdiction.
Finally, a curious silence. The proposed draft does not make
provision for the Original Jurisdiction of the CCJ. I find it difficult to
comprehend a court having exclusive and compulsory jurisdiction for
Grenada that is not expressly conferred with jurisdiction by the
Constitution. Secondly, the proposed draft amendments do not mention
a right of appeal as of right from final decisions of the Court of Appeal in
criminal matters.
Strangely, both these deficiencies exist in Belize as well so they
are by no means fatal to Grenada’s accession to the appellate
jurisdiction. But they are expressly provided for in the Barbados
Constitution. It seems to me that the Barbados model is to be preferred,
on these two specific issues.
Conclusion
37 Belize Constitution s. 104(6)
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What then of Belize and the CCJ? Hon. Sir Manuel Sosa, President
of the Belize Court of Appeal captured the reality: “It is a new kind of
relationship, vibrant and promising, of which we had no concept during
the previous history of Belize’s legal history.”38 I wholeheartedly and
respectfully agree.
The CCJ – it is ours, we made it, we work it, we developed it, we
own it, dah fi we court! From the perspective of Belize, on the western
fringe of the Caribbean space, we find it difficult to accept the hesitancy
in parts of the Community to take the historic step to finally and fully
embrace the CCJ. I have shown that politics delayed but did not derail
the process in Belize. We have seen the attempt in Jamaica thwarted by
controversial Privy Council Judgment and the continuing delay because
of local politics. This is interesting as the current Government has
proposed moving to a republic, but has insisted on a referendum before
joining the appellate jurisdiction. The Jamaica situation is rather
curious. In St Vincent there was the referendum with the result that the
proposed accession to the appellate jurisdiction of the CCJ failed. We
38 “On Board with the CCJ: An Overview of the Belizean Experience thus Far” Presentation to the students of the Faculty of Law, St Augustine Campus, Trinidad & Tobago, February 25, 2015
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have seen the stirrings in Antigua & Barbuda and in St Lucia. The winds
of change are blowing.
Grenada I close by paraphrasing from the debate in the Belize
House of Representatives in 2004:
“… the eyes of the entire Caribbean Community are upon [you]. The
eyes of the region are upon [you]. [Your] decision [in a few weeks] is
important, not only [for] the success and vitality and vigour of the
operation of the court, but, indeed, for the future of the entire
regional movement.”
Carpe Diem!
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