Independent Jamaica Council for Human Rights (1998) Ltd and Others v Marshall-Burnett and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 03 February 2005 |
| Neutral Citation | [2005] UKPC 3 |
| Court | Privy Council |
| Docket Number | Appeal No. 41 of 2004 |
| Date | 03 February 2005 |
and Others
[2005] UKPC 3
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Privy Council
[Delivered by Lord Bingham of Cornhill]
On 30 September 2004 the Governor-General of Jamaica, acting under section 60 of the Constitution, gave his assent to three bills, the broad effect of which was to abolish the right of appeal to Her Majesty in Council and to substitute a right of appeal to a new regional court of final appeal, the Caribbean Court of Justice ("the CCJ"). The key question in this appeal is whether the procedure adopted in enacting that legislation complied with the requirements laid down in the Constitution.
The appellants' challenge to the constitutionality of the legislative procedure adopted came before the Full Court of the Supreme Court (Wolfe CJ, Marsh and McIntosh JJ) when the bills were still going through Parliament. That court did not review the legal merits of the appellants' argument, but struck out the proceedings as premature. In reasons given on 17 May 2004, following a hearing in April, the court held that any challenge should be made after and not before enactment of the legislation. The Court of Appeal (Forte P, Harrison and Smith JJA) did hear argument on the merits of the appellants' challenge, but rejected it for reasons given in judgments delivered on 12 July 2004. The appellants repeat their challenge before the Board. But because the bills have now received the assent of the Governor-General, the argument on prematurity has been overtaken by events, and so is not pursued. An undertaking has been given that the Acts will not be brought into force until this appeal has been determined.
This is an appeal of obvious constitutional importance, and two matters should be clearly stated at the outset. First, Dr Lloyd Barnett, speaking for all the appellants, roundly accepted that 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 in Council and no more. He also accepted that the Parliament of Jamaica could validly have provided, in effect, for the CCJ to take the place of the Privy Council as the ultimate court of appeal from the courts of Jamaica. But this latter object, he submitted, could not, consistently with the Constitution, be achieved by ordinary legislation since it undermined certain provisions of the Constitution which were accorded special protection and could thus be altered only by employing the procedure appropriate for altering such provisions. Thus the argument is not whether the Parliament of Jamaica had power to achieve the object it sought to achieve but whether the procedural means of achieving it followed the procedure required by the Constitution.
Secondly, it must be understood that the Board, sitting as the final court of appeal of Jamaica, has no interest of its own in the outcome of this appeal. The Board exists in this capacity to serve the interests of the people of Jamaica. If and when the people of Jamaica judge that it no longer does so, they are fully entitled to take appropriate steps to bring its role to an end. The question is whether the steps taken in this case were, constitutionally, appropriate.
Section 110 of the Constitution (which forms Part 3 of Chapter VII of the Constitution) provides for a right of appeal from the Court of Appeal to Her Majesty in Council. The appeal is in some cases as of right (subsection (1)), in others by leave of the Court of Appeal (subsection (2)), in others by special leave of the Board (subsection (3)). The Caribbean Court of Justice (Constitutional Amendment) Act 2004, Act 20 of 2004, one of the measures challenged by the appellants, alters this part of the Constitution. It deletes from the heading of Part 3 the reference to Her Majesty in Council and substitutes reference to the CCJ. It deletes section 110 and substitutes a new section which, with some updating of monetary values and some amendment, is to very much the same effect, save that references to the CCJ are substituted for references to Her Majesty in Council. A new section 110A makes plain that there shall be no appeal to Her Majesty from any court in Jamaica by special leave. The Act does not alter section 94(7) of the Constitution, relating to the Director of Public Prosecutions, in which reference is made to the Judicial Committee of the Privy Council. Nor does it alter subsections (5), (6) and (9) of sections 100 and 106 which address the role of the Judicial Committee in the removal of judges of the Supreme Court and the Court of Appeal respectively.
The second of the measures challenged by the appellants is the Caribbean Court of Justice Act 2004, Act 21 of 2004. This Act seeks to give effect in the domestic law of Jamaica to an international Agreement Establishing the Caribbean Court of Justice signed at Bridgetown, Barbados, on 14 February 2001, as amended by a Protocol to that Agreement Relating to the Juridical Personality and Legal Capacity of the Court signed at Montego Bay, Jamaica, on 4 July 2003. The Act provides (in section 3) that the provisions of the Agreement shall have the force of law in Jamaica, and empowers the Minister (in section 4) to make such provisions as may be necessary for carrying the provisions of the Agreement into effect. Section 5 of the Act provides:
"5.-(1) Where any amendment to the Agreement is ratified by the Contracting Parties, the Minister may, upon the coming into force of that amendment, by order amend the Schedule by including therein the amendment so ratified.
(2) Any order made under this section may contain such consequential, supplemental or ancillary provisions as appear to the Minister to be necessary or expedient for the purpose of giving due effect to the amendment ratified as aforesaid and, without prejudice to the generality of the foregoing, may contain provisions amending references in this Act to specific provisions of the Agreement.
(3) Every order made under this section shall be subject to affirmative resolution.
(4) Where the Schedule is amended pursuant to this section, any reference in this Act or any other instrument to the Agreement shall, unless the context otherwise requires, be construed as a reference to the Agreement as so amended."
The CCJ is to have an original jurisdiction. It is also to have an appellate jurisdiction, defined as in the new section 110 inserted in the Constitution by the Constitutional Amendment Act. Section 16 provides:
"A Judge of the Court [the CCJ] may exercise all of the powers and functions of a Judge of the Supreme Court or of the Court of Appeal with respect to the area within its jurisdiction."
Provision is made in section 20 for a Regional Judicial and Legal Services Commission which is to consist of persons appointed in accordance with the Agreement. Under section 21 the Commission has responsibility for making appointments to the office of Judge of the Court, other than that of President, terminating appointments in accordance with the provisions of the Agreement, making a recommendation for the appointment of the President and exercising disciplinary control over the Judges of the Court other than the President. By section 21(5),
"The proceedings of the Commission shall not be inquired into by any court of law or tribunal."
The Agreement and the Protocol, both of which were signed and in due course ratified by a number of Caribbean states, are scheduled to the Act in Parts I and II. It is unnecessary for present purposes to consider the Protocol. Nor need the full effect of the Agreement be summarised. The preamble acknowledges the desirability of entrenching the CCJ in the national constitutions of the contracting states. The President of the Court is to be appointed or removed by the qualified majority vote of three-quarters of the contracting parties on the recommendation of the Regional Judicial and Legal Services Commission. The Judges of the CCJ other than the President are to be appointed or removed by a majority vote of all the members of the Commission (article IV, paras 6 and 7). The Commission is to comprise the President of the CCJ as chairman, and ten members selected or nominated by specified professional, academic and public bodies. The Commission is to appoint judges of the CCJ other than the President, terminate appointments in accordance with the provisions of the Agreement, and exercise, in accordance with Regulations, disciplinary control over judges of the CCJ other than the President (article V, paras 1 and 3). Article IX governs the tenure of office of judges. The office of a judge may not be abolished while there is a substantive holder of it. The President is appointed for a non-renewable term of seven years or until he is seventy-two, whichever is earlier. Other judges also are subject to the same retirement age. A judge may only be removed from office for incapacity or misbehaviour, and only in accordance with the provisions of article IX. Paragraphs 5, 6 and 8 of article IX provide:
"5.-(1) Subject to Article IV, paragraph 5, the President shall be removed from office by the Heads of Government on the recommendation of the Commission, if the question of the removal of the President has been referred by the Heads of Government to a tribunal and the tribunal has advised the Commission that the President ought to be removed from office for inability or misbehaviour referred to in paragraph 4.
(2) Subject to Article IV, paragraph 6, a Judge other than the President shall be removed from office by the Commission if...
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