The CCJ: Proving Detractors Wrong or Flattering to Deceive?

Posted on May 24, 2007
Filed Under Legal Commentary |

Commentary on A-G of Barbados and others v. Jeffrey Joseph and Lennox Ricardo Boyce – CCJ Appeal No. CV.2 of 2005

by David G. Batts

1. The Caribbean Court of Justice (hereinafter referred to as the CCJ) came into being after a long and not uncontroversial period of debate. Jamaica, whose government was one of its strongest proponents, also proved to be the home of some of its strongest dissidents. In Trinidad, the party which while in government had signed the Treaty, once in opposition suddenly discovered that the Court was not such a great idea after all. While some of the political leaders in the Organization of Eastern Caribbean States had been vocal supporters their governments have done precious little to accede to the appellate jurisdiction of the CCJ. Bahamas long ago indicated no interest in the project. Barbados and Guyana are the exceptions and have adopted the appellate jurisdiction of the Court.

2. Opposition to the idea of a CCJ can be said to centre around the following core concerns:

  1. The belief that Caribbean states are too small to have an independent court, and;
  2. The belief that Caribbean states are too impoverished to fund a court which will compare qualitatively to that which now exists in the Judicial Committee of the Privy Council. (hereinafter referred to as the Privy Council).

3. These perspectives are not to be dismissed as backward, colonial or entirely baseless. Insofar as the question of independence is concerned, our jurisdictions are not unfamiliar with attempts by politicians and others to interfere with the judicial process. While other democratic countries have experienced attempts at interference, these as far as I know are largely relegated to historical fact. It must be worrisome for us that political leaders in a 21st century democracy from time to time make utterances which at best reveal insensitivity to the need for and meaning of judicial independence.

4. In Jamaica a Prime Minister recently in criticism of the judicial decisions of the Privy Council told an annual conference of his party that,

“I am not going to allow any group anywhere under the guise of judicial (sic) making decisions that take policy decisions on social matters that are the prerogative of Jamaica as a sovereign and independent country”.

In Trinidad and Tobago there occurred an unseemly public dispute between the Chief Justice of that country and the government of the day over issues related to budgetary and administrative control of the Judiciary. The Chief Justice was publicly condemned by members of the Government. [1]

5. The second concern has to do with the treatment of regional institutions over the years and the way judicial institutions in particular have been resource starved. We reflect on the University of the West Indies and the regional Law Schools in which regional governments are regularly late with their subventions sometimes being years in arrears. In Jamaica politicians have “systematically” starved the judiciary of resources. A judge’s salary and pension is such that many look forward to “consulting” work with government after retirement. This may not be an option if their decisions have not been regarded as friendly. The conditions existing in the system of justice are disgraceful. [2]

6. To their credit however, regional politicians did pay serious attention to some of the concerns raised. This is demonstrated by the recorded fact that the original date for execution of the Treaty to establish the Caribbean Court was postponed in 2000 for one (1) year so that changes could be considered. In that one year period the following fundamental changes were made to the draft Treaty for establishment of the court:-

  1. The structure of the Regional Judicial and Legal Services Commission was changed so that it no longer had a majority of members appointed by or connected to regional governments.
  2. The arrangement for the financing of the court was revolutionized. Regional governments would no longer be required to make annual subventions. Rather the court would be funded by income from a capital trust fund. The institution providing the loan to establish that fund would look to regional governments for repayment. Any default on their part would and could not affect the existence of the fund which will be administered by an independent Board of Trustees.

7. Those two (2) changes went a far way to satisfy the Jamaican Bar Association which had pointed to both areas of weakness. [3] The Agreement Establishing the Caribbean Court of Justice (hereinafter the Agreement) [4] therefore provided for the appointment of judges by a Regional Judicial and Legal Services Commission which on paper seemed independent. The Agreement Establishing the CCJ Trust Fund is designed to ensure that the Court could not be held to ransom by regional government’s failure to pay subventions.

8. The appointments to the court did not stir great controversy. The positions were advertised and candidates interviewed. The judges appointed to date are as follows:

9. It should have come as no surprise that the court’s first true test emanated from Barbados. This nation had railed against the decisions of the Judicial Committee of the Privy Council (hereinafter The Privy Council) which seemed to be “anti-hanging”. In this, Barbados was not alone. In Jamaica the issue of capital punishment and the perceived attitude of the Privy Council to it had overshadowed debate about the court. It was at one time even suggested that the Privy Council’s anti-hanging stance was a reason to have a new court in its place. Persons of that view paid little heed to the warning that, to abolish a court because you did not like its decisions made no sense unless you intended to create a court whose decisions would reflect your will, and hence one which was not truly independent. To be fair Barbadian support for a Caribbean Court can also be traced to their belief in the region’s ability to produce a judiciary of the highest quality. This belief no doubt sustained by the fact that their own domestic system of justice has been reasonably well funded and maintained since Independence.

10. However, when the government of Barbados brought the appeal in respect of Jeffrey Joseph and Lennox Boyce, it represented a direct challenge to the “anti-hanging” decisions of the Privy Council.

11. The facts of the case briefly stated were that Joseph and Boyce had been convicted of a rather brutal murder. [5] Each received a mandatory sentence of death. The Barbados Privy Council an advisory body to the Governor General (hereinafter referred to as the Mercy Committee) notified the men to indicate that they would be meeting to consider the question of mercy (commutation) and requested submissions. The men’s counsel objected on the basis that review was objectionable at that stage since their appeal to the Privy Council was still pending. No representation was made on the men’s behalf to the Mercy Committee which met and advised the Governor General against commutation. The Privy Council subsequently heard the men’s appeal and dealt with only one issue that being whether the mandatory sentence of death was constitutional. They held that it was. [6]

12. The men thereafter applied to the Inter-American Commission on Human Rights and while this was pending death warrants were read to them. They applied to the court for stays of execution and argued that their right to life, security of the person, protection of the law and not to be subject to inhuman and degrading punishment was being infringed and for commutation of the death penalty. The application was dismissed by Greenidge, J. at first instance but they succeeded on appeal to the Barbadian Court of Appeal. The Government of Barbados therefore appealed to the CCJ which had recently replaced the Privy Council as that country’s final appellate court.

13. All eyes therefore focused on the CCJ. Would it do as its regional governments almost to a man desired (and expected?) or would the Court give a judgment reflective of modern constitutional trends?

14. The matter was heard by all seven (7) judges of the Court. The President and Justice Saunders wrote a joint judgment. Justices Pollard and Wit gave separate written reasons. Justices Hayton, Nelson and Bernard expressed agreement with the joint judgment of the President and Saunders, J. and limited themselves to observations on specific points.

15. The issues to be determined [7] were:

  1. whether the exercise by the Governor General of his powers under section 78 of the Constitution of Barbados is justiciable and if so, to what extent
  2. in what manner, if at all, may unincorporated international human rights treaties which give a right of access to international tribunals affect the rights and status of a person convicted of murder and sentenced to the mandatory punishment of death by hanging.
  3. whether section 24 of the Constitution authorizes the Court to commute a death sentence and, if so, whether in all the circumstances it was appropriate for the Court of Appeal to take into account the matters that it did in deciding whether to commute or give other relief.

16. The CCJ dismissed the government’s appeal. The court upheld the following constitutional principles:

  1. The right to a fair hearing meant that when mercy was to be considered the condemned man is to be given a fair hearing and this is to occur after all appeals. The exercise of the Governor General’s powers were in this regard justiciable.
  2. The right created by Treaty to appeal to international bodies created a legitimate expectation the breach of which will deprive a citizen of a constitutional right to due process and the rule of law. The consideration of mercy should therefore also await at least for a reasonable period of time, the result of his appeal to such an international body. This was so whether or not the Treaty had been incorporated by statute into domestic law.
  3. The Court of Appeal was right to commute the death sentences in the circumstances of this case.

17. Interestingly, although the government of Barbados did not challenge the legal validity of the five (5) year Pratt & Morgan [8] stricture established by the Privy Council, the CCJ regarded the Crown’s concession in that regard as “rightly made”. [9]

18. In arriving at its decision the Court on the face of it has first and foremost established that it can and will act independently and will not be swayed by polls, public opinion, talk show hosts or politicians. The CCJ has demonstrated a commendable robustness, not only in its decision on principle but also its preparedness to reinforce the protection afforded by constitutional guarantees of fundamental rights.

19. The writer is however concerned that the President and Saunders, J. stated that the main purpose of establishing the CCJ was to “promote the development of a Caribbean jurisprudence” [10]. It is true that this aim forms one of the several recitals in the Agreement [11]. However, the Court should not in its deliberations be unduly concerned with self righteous platitudes and high sounding phrases which politicians introduce by way of recital to the Agreement. It is the submission of the writer that the raison d’etre of the CCJ is the provision of a more affordable and hence accessible forum than the Judicial Committee of the Privy Council for the provision of justice at the highest appellate level. If the course of justice leads to the creation of a Caribbean jurisprudence then so be it, but that must be incidental to the primary role of a court which is to deliver just and true decisions according to law and to be the ultimate judicial guardian of the human rights of the peoples of the Region.

20. This, to be fair, is what the judges did at the end of the day. Certainly, the analysis of Justices De la Bastide and Saunders paid due and deferential regard to established legal principles and authority. All the judges affirmed the right to judicial review even in the face of an attempted exclusion clause. The Court rejected a submission that the Mercy Committee being advisory was not a decision maker and hence not subject to review on the basis that, as the Governor General chaired its deliberations and, as he was obliged to abide its advice that Committee in fact made the decision [12]. The Court displayed an admirable appreciation of the constitutional right to due process and the rule of law and was prepared to give it full effect.

21. Even so, the writer would venture to suggest that a rather bolder approach could have been taken to the question of whether judicial review of a prerogative was permissible. Since the Constitution provides for a mandatory review of the death row inmates’ case, that review is arguably no longer a “prerogative” of the Crown properly so called. The English cases on review of a prerogative would therefore have been only tangentially relevant. Judicial review on traditional Marbury v Maddison [13] principles would follow naturally. It is true that such an argument was not made to the Court but I submit that such an approach would have represented a “Caribbean jurisprudence”. Justice Bernard who expressed agreement with the conclusions of the President and Justice Saunders came closest to such an analysis when she stated,

“Mercy may not and perforce, cannot be regarded as a right, but when its exercise is formalized by the establishment of a tribunal with statutory powers, that subject matter (mercy) ceases to be a discretion capable of being exercised capriciously; it becomes a matter to be determined in accordance with rules of fundamental justice. The decision-making process of the exercise of the prerogative of mercy must be no different from the exercise of other prerogative powers when states create tribunals vested with constitutional powers and procedures to regulate the process of granting mercy.”

22. To its credit also the CCJ underscored the fact that mercy is not a deviation from the normal course of the law but is a part of justice. The President and Justice Saunders quoted with approval Justice Holmes of the U.S. Supreme Court,

“A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Biddie v Perovich 274 US 480 (1927) 486.

23. The CCJ in coming to its decision that Lewis vs. A.G. of Jamaica [14] was correctly decided by the Privy Council paid due respect to previous decisions and established principles and had regard to many authorities some as far away as New Zealand and others as nearby as Guyana,.

24. In acknowledging the intellectual rigour displayed before arriving at that conclusion the writer sincerely hopes that the CCJ does not intend to act as a Court of Appeal from all previous decisions of the Privy Council. We should hope and expect that decisions of the Privy Council will be treated as established law and only in exceptional circumstances reviewed. The alternative will lead to great uncertainty.

25. The CCJ also settled the matter of the effect of ouster clauses in a Constitution as
per the President and Saunders, J:

“Mr. Forde also urged us, in his written submissions, to give effect to the ouster clause contained in section 77 (4) of the Constitution. That clause in our view, provides no comfort to the Crown. Ever since the House of Lords decision in Anisminic v Foreign Compensation Commission, courts have made it clear that they will not be deterred by the presence of such ouster clauses from inquiring into whether a body has performed its functions in contravention of fundamental rights guaranteed by the Constitution and in particular the right to procedural fairness, see Thomas v A-G [1981] 32 WIR 375, A-G v Pyan [1980] AC 718 @ 730, Lauriano v A-G [1995] 47 WIR 74 and Ulufa’alv v A-G [2005] 1 LRC 698 @ 708”.

Per Wit, J.:

“As every person and institution in Barbados functions under the Barbados Constitution, being the supreme law of the land, and as therefore all are duty bound to act rationally, reasonably and fairly and all, including the courts themselves, have to bear the weight of judicial scrutiny, ouster clauses seeking to relieve that onus must of necessity be construed as narrowly and restrictively as possible. This is mutatis mutandis the case with the ouster clause of section 77(4) of the Barbados Constitution which apparently seeks to shield the BPC from judicial review that might be deemed inappropriate or unnecessary. But in my view this clause does not relieve the BPC from their constitutional duty of rational and reasonable decision making nor does it mean that they could freely ignore the law. And it goes without saying that the ouster clause does not imply that the BPC would be free to indulge in procedural impropriety. The clause does mean that the confidentiality of their deliberations must and will be protected, save, perhaps, in exceptional circumstances where the interests of justice so compellingly require. It follows, then, that the ouster clause does not preclude the courts from having a look at the proceedings of the BPC or from adjudicating certain aspects of those proceedings and their outcome. And so, in my opinion the very existence of this ouster clause can have no relevant negative effect as to the question whether Lewis was applicable in Barbados”.

26. The writer is also sympathetic to the CCJ’s departure from the reasoning of the majority in Thomas v A-G [15] and Lewis v A-G [16] on the question whether an unincorporated treaty created a right for the citizen. Certainly, ratification of a treaty without passage of domestic legislation has never been sufficient to amend domestic law. Legitimate expectation on the other hand, created by accession to such a treaty is a preferable juristic basis on which to pin the right. The court in my respectful view was correct and on a firm juristic foundation to rely on:-

  1. the entry into and ratification of the treaty,
  2. declarations in Parliament and elsewhere of an intention to abide its terms and;
  3. an established practice of allowing completion of the petitions to international bodies prior to execution, in order to come to the conclusion that the respondents had an enforceable right. This because there was a legitimate expectation that the state would not execute them without first allowing a reasonable time within which to complete the proceedings they had initiated pursuant to the treaty.

The Court therefore decided that the reading of the death warrant prior to allowing a reasonable time for completion of the appeals to the international tribunal was an infringement of the constitutional right to protection of the law.27. In this regard, and whilst one may have reservations about his rather “opaque” language [17] , Pollard, J.’s analysis is commendable. He first pointed to the Court’s dilemma,

“The courts, in determining whether or not to offer judicial protection to a legitimate expectation or allow it to be frustrated by a change of executive policy, are inevitably caught up in a balancing exercise involving, on the one hand, competing claims of overriding public interest in legality and administrative autonomy and, on the other hand, of an enduring private interest in procedural fairness and legal certainty.”

He then reviewed in detail the authorities on the issue and ably demonstrated that the decision in Lewis was arrived at without a detailed analysis of the principle of legitimate expectation and compromised established orthodoxy as to the circumstances in which a treaty can affect domestic law. He stated,

“To invest an intentional act like ratification with substantive conduct at the municipal plane must be seen to compromise the constitutional principle that unincorporated treaties form no part of domestic law in dualist jurisdictions”.

Pollard, J. then demonstrated that a legitimate expectation may give rise to an indefeasible right in the individual:

“Accepting the validity of this perception, it does appear to follow from the nature of treaties as solemn commitments liable to engage the international responsibility of states, that a legitimate expectation issuing from Article 4(6) or Article 44 of the Convention conferring legal rights directly on an ascertainable body of private individuals, reinforced by treaty-compliant executive conduct implementing relevant treaty provisions at the municipal plane, was qualitatively different from the generalized expectations engendered by the mere ratification of a treaty. Such a legitimate expectation in my view may not be easily frustrated by a mere contradictory statement of policy by the executive at the municipal plane. What appears to be required in order to frustrate the expectation, reinforced and validated as it was by treaty-compliant executive conduct implementing the relevant provisions at the municipal plane, in my opinion, are appropriate normative measures at the international plane to defeat the relevant treaty commitments, namely, denunciation or entry of reservations, coupled with effective measures at the municipal plane. Compare in this context the repeal or amendment of the provisions of an enactment constituting the source of a legitimate expectation thereby operating to defeat the same. Absent such conditions, the legitimate expectation must be seen to be indefeasible where a change in executive conduct would work injustice or unfairness to a current representee without safeguarding an overriding public interest in the change.”

28. Justice Wit be it noted had a viewpoint which was contrary to the majority’s. He felt that the right granted by treaty ought to be given effect through the “front” door rather than by the “back” door of the legitimate expectation.

“Because the signing and ratification of treaties have consequences, States should be cautious before they sign and ratify. But once they do, they are bound, and they must comply. Maintaining an old and unsound doctrine that stimulates an approach whereby treaties are ratified but almost never enacted, causes States to be perceived as having a split personality. A judicial restructuring of the judge made law on this point will not completely set us free of this predicament, but it will make us more conscious of the healthy tensions within our domestic legal system and it will lead to a less contrived approach towards human rights law. At the same time, it will not prejudice or compromise our own true values and norms.”

He also opined that the silence of the Constitution on the matter of the effect of a treaty on domestic law, left the matter open to judicial determination. As attractive as that approach is for the desirable result in this case, the undersigned must disagree and side with the majority. The common law was not changed by the Constitution and hence the “dualist” doctrine remains. Furthermore, we should be careful lest we by its Treaty making power confer unintended legislative authority on the Executive.

29. The CCJ also gave guidance to the Mercy Committee as to how to approach the matter. Only one meeting is generally required and this after all domestic and international appeals have been exhausted;
Per the President and Saunders, J.:

“At that stage they should make available to the condemned men all the material upon which they propose to make their decision, give him reasonable notice of the date of the meeting and invite him to submit written representations.”

At least one of the judges [18] was of the view that the mercy committee was not obliged to give reasons. The subject of this dicta (obiter) attracted no comment from the other judges.

30. Interestingly, two judges of the Court were prepared to review the decision of the Mercy Committee on bases having to do with irrationality: that is on substantive rather than procedural grounds. Mr. Justice Nelson who in a short judgment expressed agreement with the President and Saunders, J. went on to state,

“In my judgment any unlawfulness found in consequence of a review on such grounds would also constitute a breach of the constitutional rights of the condemned man and trigger the wide remedies under section 24 of the Constitution. Indeed, on the facts of the instant case there may be a serious question as to the proportionality of the death sentence imposed on the respondents as against the sentence of 12 years meted out to their fellow perpetrators. The Court of Appeal in my view properly took this factor into consideration in deciding whether to commute the death sentences imposed on the respondents.” [19]

31. The other such judge was Mr. Justice Wit who was clearly of the view that on the facts the decision of the Mercy Committee was irrational.

“Decisions on who will be hanged and who will be spared are, of course, no longer a matter of turning the imperial thumb up or down, whether divinely inspired or not. In 21st century Barbados, these are policy decisions as to how to individualize the impersonal reflection of abstract justice. They should therefore not only be rational but also unequivocally reflect that rationality. Although one cannot ignore the fact that the BPC has a very broad discretion as to the exercise of mercy, in the present case, however, the decision to have these death sentences executed leaves the objective observer somewhat bewildered as the Crown apparently seeks to take the lives they initially wanted to spare; seemingly for the reason that the condemned men could have spared the Crown the time and costs of a trial. That might very well be a proper reason for a difference in sentencing, but a difference between twelve years and death for that “circumstance” seems clearly disproportionate and utterly unreasonable (or, in the sometimes obscure vernacular of English law, Wednesbury unreasonable).”

He then remarked that instead of arguing the matter in this straightforward way the respondents adopted the “roundabout” route of attacking its procedure. Justice Wit is of course a lawyer from the Civil Law/Continental tradition and we therefore forgive his aside, particularly because his aggressive approach to the protection of human rights is to be applauded.

32. Noteworthy also in his judgment is the reminder that human rights if protected for the worst of us will for that reason be stronger for the rest of us. In today’s world where the exigencies of the day threaten to erode this principle it is perhaps fitting to quote Justice Wit again,

“It is in a sense regrettable that human rights almost always seem to be invoked by people who themselves have shown little respect for the rights of others. We pride ourselves, rightly so, that the rule of law embraces even those that live on the seamy side of society. But it sometimes seems to shake the “unshakable faith in the fundamental rights and freedoms” when it appears that the application of those rights has once more “saved the necks” of those that have committed very serious crimes. That is most unfortunate. The potential, the positive and creative effects of these rights abound for those who want to see them. They are there for all citizens alike and not only for condemned murderers.”

33. In the final analysis the CCJ has established that Human Rights and the established principles in that regard will be at the forefront of its determinations.

The quality and robustness of the approach convinces me that this is not mere flattery. It appears that the thesis for the Court and the antithesis from the detractors have synthesized, and have resulted in the creation of an institution of which we can be justly proud.

1. For a discussion of these matters see Stephen Vasciannie’s “Judges at the Border of Law and Politics” Vol. 51 No. 1 Social and Economic Studies March 2002 and Sunday Gleaner 18th September, 1999 page A6.

2. These are well documented but see in particular the Jamaican Bar Association’s Submission on the conditions in the Justice System made to Parliament’s Internal and External Affairs Committee – 2nd May, 2000.

3. Although other major concerns, such as the opinion that the court ought to be entrenched in the Constitution of each participating State remained. See Position Paper of The Council of the Jamaican Bar Association on the Proposed Caribbean Supreme Court - 9th March, 2000.

4. It was signed on the 14/2/01 by the governments of Antigua & Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago

5. Four persons had been charged with this murder, Joseph and Boyce entered a plea of Not Guilty. The other two entered pleas of guilty to manslaughter and were sentenced to 12 years in prison.

6. Boyce v R [2004] 64 WIR 37, [2003] 1 AC 400.

7. As stated in the joint judgment of the President and Saunders, J.

8. Pratt & Anor. v. A-G [1993] 43 WIR 340; [1994] AC1

9. Per the President and Saunders, J.

10. Per the President and Saunders, J. at paragraph 18 of their judgment.

11. Agreement Establishing the Caribbean Court of Justice recital #1, February 14, 2001

12. Per Mme Justice Bernard paragraph 19

13. “If then the courts are to regard the Constitution and the Constitution is superior to any ordinary Act of the legislature, that Constitution and not such ordinary Act must govern the case to which they both apply.”
1 Cranch 137, 2 Led 60 [1803]

14. [1999] 57 WIR 275, [2001] 2 AC 50

15. [1981] 32 WIR 375, [1982] AC 113

16. [1999] 57 WIR 275, [2001] AC 50

17.“Postulated in other terms, the primordial requirements of legal certainty and procedural fairness in my view must be seen by this court to trump the flawed reasoning of the Board with a probable positive impact on good governance in the sub-region based on the rule of law.”

18. Hon. Mr. Justice Hayton, paragraph 9

19. The “fellow perpetrators” were 2 co-accused who pleaded guilty to manslaughter and received a prison term of 12 years. Boyce and Joseph having pleaded not guilty to murder were convicted by the jury.

Comments

One Response to “The CCJ: Proving Detractors Wrong or Flattering to Deceive?”

  1. Julian on March 29th, 2009 9:39 am

    Will the CCJ be a better option for judicial development in the Caribbean than cases appeals to the Privy Council?

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