On February 14, 2001, the Heads of Government of a number of States in the Caribbean region, including Jamaica, signed an Agreement Establishing the Caribbean Court of Justice. This Agreement was, in due course, ratified by Jamaica and a sufficient number of other countries to be formally in existence, although it has not yet come into operation.
By this Agreement, the signatory States undertook to enact the necessary legislation in their respective territories so as to vest the Court with:
An Appellate Jurisdiction to make the Court the final Appellate Tribunal for those member states whose legal systems are based on the common law.
An original jurisdiction relating to trade disputes arising out of the establishment of the CARICOM Single Market and Economy; and
With a view to fulfilling our Treaty Obligations, the government introduced in Parliament and duly enacted the following Bills:
An Act to Amend the Constitution of Jamaica so as to abolish the right of appeal to Her Majesty in Council and substitute the Caribbean Court of Justice as our Final Court of Appeal.
An Act to make the Caribbean Court of Justice part of our judicial system so that its decisions could be enforced under our law.
An Act to Amend the Judicature (Appellate Jurisdiction) Act so as to bring criminal appeals within the purview of that Court.
As members are aware, litigation challenging the process that was adopted for the passage of these Bills through Parliament was commenced by a number of Claimants headed by the then Leader of the Opposition, the Jamaica Council for Human Rights, the Jamaica Bar Association, Jamaicans for Justice and Mrs. Leonie Marshall.
The actions were brought in the Supreme Court while the Bills had yet to be considered by Parliament. The Full Court struck out the proceedings as premature.
It held that any challenge should be made after and not before enactment of the legislation.
In the Court of Appeal the merits of the arguments were heard but rejected for reasons given in the judgements delivered in July 2004.
The claimants appealed to the Judiciary Committee and the Privy Council..
As Member States are aware, the Board decided that the appeal should be allowed as the Acts “were not passed in accordance with the procedure required by Constitution”.
Mr. Speaker, in as much as the result of the litigation negates legislation passed by Parliament, I have a duty to state in this House and for the record exactly what the Court decided, and the reasons given in so far as they are relevant to any future action which this House may decide to take in respect of our final Court of Appeal.
These will also determine how we proceed and what future action is required to fulfil our Treaty obligations.
ABOLITION OF APPEALS TO THE PRIVY COUNCIL
The framers of the Constitution never envisaged that the Privy Council would continue to be our final Appellate Tribunal in perpetuity, that is why they deliberately did not entrench the Final Right of Appeal to that body. While it is true, as the Privy Council did not in its judgment say that it was within the competence of the framers of the Constitution to “have entrenched the independence of the members of the Judicial Committee had they wanted to do so”, it is nevertheless a fact that it was within their competence to entrench the right of appeals as other Caribbean countries do. They expressly refused to do so.
The conclusion is that this judgment confirms that the Jamaican Parliament is competent to abolish appeals to the Privy Council by the affirmative vote of a majority of all the member of the House and the Senate.
It had been hotly contended that this could not be done and, in particular, that the prerogative right to petition Her Majesty could not have been accomplished by that process. It had even been suggested that so long as we retain Her Majesty as Head of State, appeals to the Privy Council could not be totally abolished. That has now been put to rest.
There is, in addition, an historical underpinning to the finding of the Privy Council the framers of the Constitution, by not entrenching in the Constitution the right to appeal to the Privy Council, were sending a clear signal that that court was not to be our final appellate tribunal in perpetuity.
A second and important ruling made by the Privy Council was that, even though “there could have been no objection to legislation supported by a majority of members of each House of Parliament which simply abolished the right of appeal to Her Majesty”, that procedure could not be adopted if Parliament wished to substitute another Court as our final Court of appeal.
The Privy Council found that there was no objection to the Caribbean Court of Justice being substituted as our final court of appeal. They stated that “the Parliament of Jamaica could validly have provided in effect, for (that Court) to take the place of the Privy Council as the final court of appeal for Jamaica”. But they questioned whether these two objectives could be achieved in one legislative act and in the way they were sought to be accomplished. They accepted the argument that, establishing the Caribbean Court of Justice as a court to which appeals would come from the Jamaican Court of Appeal, directly impacted on, and amounted to an implied alteration of, section 103 of the Constitution, the section that establishes the Court of Appeal. Since that section was entrenched, the procedure to be adopted for establishing the Caribbean Court of Justice was the one that was appropriate to the amendment of an entrenched section.
The Privy Council held that to establish the Caribbean Court of Justice in the absence of such a procedure, it would “not enjoy the protection accorded by the Constitution to the higher judiciary of Jamaica”.
JAMAICA’S PARTICIPATION IN THE SINGLE MARKET AND ECONOMY – THE ORIGINAL JURISDICTION OF THE COURT
Mr. Speaker, whilst the Privy Council did not devote any significant part of the judgment to the original jurisdiction that the court would exercise, all of us in this Parliament are well aware of its critical importance to the full functioning of the CARICOM Single Market and Economy.
It is clear that Jamaica cannot participate in the CSME without subscribing to the original jurisdiction of the Caribbean Court of Justice.
A preambular paragraph of the Revised Treaty of Chaguaramas repeats and affirms “that the original jurisdiction of the Caribbean Court of Justice is essential for the successful operation of the CSME”.
This is a position repeatedly articulated by the Government in all the debates and presentations on this topic. That is also the conclusion arrived at from the expressed language of various provisions in the Revised Treaty, which establishes the CSME. Article 211 which speaks to the Jurisdiction of the Court in Contentious Proceedings, stipulates that: “Subject to this Treaty, the Court shall have compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Treaty.”.
Article 261 which addresses the Compulsory Jurisdiction of the Court provides that: “The Member States agree that they recognize as compulsory ipso facto and without special agreement, the original jurisdiction of the court referred to in Article 211”.
Article 212 concerning Advisory Opinions of the Court and Article 214 which deals with Referral to the Court are to the same effect. It is true that Articles 188 to 210 of the Revised Treaty provide for various modes of dispute settlement concerning the CSME in addition to judicial decisions, but this is “without prejudice to the exclusive and compulsory jurisdiction of the Court in the interpretation and application of this Treaty under Article 211.”.
It means then that with a view to moving forward with our Treaty obligations we must seek, with our CARICOM partners, to resolve the several issues that arise as a result of the ruling of the judgement of the Privy Council.
In the first place Jamaica, Barbados and Trinidad and Tobago are scheduled to sign off on the implementation of the Single Market among ourselves within a few days. A decision will have to be taken as to how States Parties took the Revised Treaty can fulfil their legislative obligations to participate in the Caribbean Court of Justice in its original jurisdiction.
It is clear that some areas of the Treaty may be brought into force by a process of simple legislation; others will require an entrenchment procedure.
Haiti and Suriname can subscribe to the Caribbean Court of Justice in its original jurisdiction only. Others may be in a position to subscribe to the original jurisdiction in short order, but may not be able to do so with respect to the appellate jurisdiction because the elaborate procedure necessary for entrenchment will take a much longer period.
Mr. Speaker,
All Member States that have ratified the Agreement Establishing the Caribbean Court of Justice are obliged to meet their obligations to the Caribbean Development Bank. Those obligations are the same whether the State is participating in the operations of the Caribbean Court of Justice in the exercise of its original jurisdiction or in both the original jurisdiction and the appellate jurisdiction.
Members will also bear in mind that the Trustees to manage the Caribbean Court of Justice Trust Fund and the Regional Judicial and Legal Services Commission, the body which has the duty to appoint the Judges of the Court, are both in place. Some of the Judges, including the President of the Court, have already been appointed and recruitment is continuing concerning certain other functionaries of the Court.
All of these matters will fall to be discussed at the Meeting of the Heads of Governments in Suriname beginning later this week after discussions by the CARICOM Legal Affairs Committee and the Preparatory Committee for the establishment of the Caribbean Court of Justice.
In examining the available options for the way forward, a careful analysis of the judgement of the Privy Council will disclose the following findings as to the provision of the Treaty which have been agreed in order to establish the CCJ.
The Board had “no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious or conscientious endeavour to create a new regional court of high quality and complete independence, enjoying all the advantages which a regional court could hope to enjoy”.
That the three Acts do not, singularly or cumulatively weaken the Constitution protection enjoyed by the higher judiciary in Jamaica.
Indeed, as the Privy Council was at pains to point out “the risk that the Governments of the contracting member states might amend the CCJ Agreement so as to weaken its independence, it maybe hoped ‘fanciful’
Mr. Speaker, as is to be expected whenever a landmark judgement is given, there will be academic exchanges and scholarly dissertations by distinguished jurists as to the soundness and consistencies of the judicial decisions.
As Prime Minister it is not for me to criticise or here question the ruling of the Privy Council. So long as it remains our final Court this Government will abide by its rulings.
As we all know, the procedure for entrenchment was designed to require collaboration between Governments and the Parliamentary Opposition. The Government has repeatedly stated its intention to have the Court entrenched eventually.
The Agreement itself contemplates that in due course there would be entrenchments.
Many voices which have hitherto given their support for the Court but have questioned the procedure employed have repeatedly stated that their resistance would be removed if the Court were to be entrenched at the same time that it is established.
It has long been stated on both sides that there is the intention that the court be entrenched. Whether it is to be entrenched after it had been established, as the Government contended, or at the same time that it is being established, as the Opposition has contended, the collaboration of both sides is a sine qua non.
We take note that the Opposition has declared that they are prepared to enter into dialogue on the matter and we certainly welcome that declaration.
Lest we forget, however, I have made several efforts to have discussions initiated and continued on this and several other issues. In 1998, the Attorney General, on my instructions, established a broad based committee to deal with issues concerning the establishment of the Caribbean Court of Justice. No member of the Parliamentary Opposition attended any of those meetings, even though the invitation had been sent and two of their members had been named to attend.
We recall that many signal amendments and improvements to the Agreement Establishing the Court flowed from those discussions and have enabled the Privy Council to hail the integrity of the Agreement itself.
There are other issues touching upon our constitutional arrangements and the protection of our rights which may usefully form a part of these discussions – all of which require an entrenchment procedure to be achieved.
Mr. Speaker,
You will recall the sitting of Parliament three Tuesdays ago when we said farewell to the Leader of the Opposition.
In my Tribute and his response, we both expressed the desire to complete the work which still remains outstanding on the Charter of Rights and Freedoms, so that this constitutional amendment can be passed by Parliament and thereby deepen and extend the Rights and Freedoms that will be enjoyed by all the citizens of Jamaica.Once again today, I urge early and decisive action.
There is also the need for us to find common ground on the question of the Death Penalty and its implementation as a result of decisions of the Judicial Committee of the Privy Council which declared as unconstitutional certain aspects of the law enforcement processes in various Caribbean countries.
By a letter of 4th December 2002, I invited the then Leader of the Opposition to nominate a team from the Opposition which would discuss with Attorneys-at-Law representing the Government, on proposals for the enactment in Jamaica of legislation similar to similar to the Constitution (Amendment) Act, 2000 of Barbados, in order to ensure the constitutionality of the death penalty and the resumption of its execution, as part of our general effort a the reduction of violent crime and the maintenance of confidence in the system of law enforcement and the administration of justice in Jamaica.
In the light of the prevailing levels of homicides in Jamaica, these discussions brook no further delay. I urge that we make a genuine effort to reach a national consensus on this burning issue.
All these matters should be included in the proposed discussions so that the necessary collaboration can be achieved. For that is an indispensable precondition to accomplish both the process of the entrenchment and the amendment of those sections of the Constitution which such matters require.
