Indep. J'ca Council for Human Rights (1988) Ltd et Al v President of Senate et Al
| Jurisdiction | Jamaica |
| Judge | FORTE, P. (Delivered orally on June 17) , FORTE, P.: , SMITH, J.A.: |
| Judgment Date | 12 July 2004 |
| Neutral Citation | JM 2004 CA 20 |
| Judgment citation (vLex) | [2004] 7 JJC 1201 |
| Court | Court of Appeal (Jamaica) |
| Date | 12 July 2004 |
CONSTITUTIONAL LAW - Legislative process - Constitutionality validity - Replacement of rights of appeal to Her Majesty's Privy Council by appeals to Caribbean Court of Justice - Whether procedure for passage of Bills in conformity with Constitution - Constitution of Jamaica, sections 49 and 110 - Whether relief can be given by court at pre-enactment stage of a Bill
The appellants filed a FIXED DATE CLAIM FORM, claiming as follows:
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1. A Declaration that the Second Reading of the Bills and/or the full debate by the Senate thereon cannot be legally proceeded with.
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2. A Declaration that in order to be valid and constitutionally effective the procedure adopted from the passage of the Bills must conform with section 49(2)(a), 4(a) and (5) of the Constitution as to—
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(a) introduction in the House of Representatives initially and before being sent to the Senate;
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(b) the time intervals and
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(c) the special majorities therein prescribed.
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3. An Order directing the First Respondent to give instructions that the Second Reading of the Bills should not be placed in the Order Paper of the Senate or should be removed from the Order Paper, if already included
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4. An Order restraining the First Respondent from permitting and or authorizing the taking of any further steps from the passage of the said Bills in the Senate pursuant to their introduction in that House.
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5. Alternatively, an Order restraining the First Respondent from sending a message to the House of Representatives indicating that the said Bills have been passed.
These claims are predicated on the presentation by the Honourable Attorney-General of three Bills in the Senate over which the First Respondent presides. The nature of these Bills are set out in paragraph 7 of the Claim Form.
It is sufficient to refer to them in summary form. One Bill seeks to amend the Constitution i.e. the Bill entitled an Act to amend the Constitution of Jamaica for abolition of appeals to Her Majesty in Council, to make provision for appeals to the Caribbean Court of Justice.
This amendment relates to section 110 of the Constitution which provides for appeals to the Privy Council. The Bill seeks to delete section 110 in its present form and to substitute therefor, provisions for appeals to the Caribbean Court of Justice.
Section 49 of the Constitution the section which determines the method of amendment of the various clauses of the Constitution does not provide for the entrenchment of section 110 and consequently the amendment of that section can be made by the votes of a simple majority in both Houses. The method being pursued in Parliament is therefore on the face not in breach of section 49.
Of the other Bills, one seeks to amend the Judicature (Appellate Jurisdiction) Act to allow appeals to the Caribbean Court of Justice and the other to establish the Caribbean Court of Justice. None of these necessitate an amendment to the Constitution other than of course the amendment to Section 110 which is dealt with in the Bill earlier referred to.
The appellants rest their claim on the basis that if there is a creation of a new Court then that Court must be entrenched as are the Supreme Court and the Court of Appeal over which it will have supervisory jurisdiction.
They contend that —
"any measure which seeks to alter or compromise the constitutional scheme by which the judicial power is exercisable only by the constitutionally created judicial institutions and by the constitutionally protected judicial officers is ultra vires and invalid, unless it conforms with the constitutional prescription for amendment."
The "constitutional prescription" for amendment of the provisions of the Jamaica Constitution exists in section 49 which prescribes that the relevant section i.e. section 110 can be amended by a simple majority. Nothing has been demonstrated in the appellants' case to lead to the conclusion that there is any legal requirement to amend section 110 by the process reserved for entrenchment clauses. If the appellants contend that the newly created Court should be entrenched then that would have to be done by the amendment of section 49(2) requiring two-thirds (2/3 rd ) majority etc.
The appellants place great emphasis on what they describe as "the constitutional scheme by which judicial powers are exercisable only by constitutionally protected judicial officers" as a basis for the contention that the new Court ought to be entrenched as is the Supreme Court and the Court of Appeal. They are however faced with the fact that in the present constitutional scheme the final Appellate Court for which the Caribbean Court of Justice is to be substituted is itself not entrenched in the Constitution.
The question of the entrenchment of a new final Appellate Court rests in my view with the policy-makers. The Judiciary cannot come to that conclusion without some legal or constitutional basis. Although the entrenchment of the final Court of Appeal is, without doubt, desirable, and would create greater stability and certainty in relation to its continuation, that cannot be a reason to fault the legislature which acts in accordance and within the powers given to if by the Constitution.
The appellants also laid emphasis on the security of tenure which they contend will not be in place for the Judges of the Caribbean Court of Justice.
This is provided for in the Agreement between the participating states, which is incorporated as part of the Jamaican legislation in the Schedule to the proposed new Act, which creates the Court.
The Agreement speaks to the appointments of the President and Judges of the Court. Significantly these sections also prescribe that before a Judge or the President can be removed from office a tribunal has to be appointed "consisting of a chairman and not less than two other members from among persons who hold or have held office as a Judge of a court of unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in a State exercising civil law jurisprudence common to Contracting Parties or a Court having jurisdiction in appeals from any such Court."
This tribunal is required to inquire into the matter and advise the Heads of Government or the Commission as the case may be whether or not the President or the Judge ought to be removed from office.
Paragraph 5(1) and (2) of the Schedule to this proposed Act speak to the removal of the President [subsection (1)], and Judges [subsection (2)] for inability or misbehaviour.
These provisions are clearly aimed at giving "security of tenure" to the Judges of the Court, which though not included in the Constitution, nevertheless give legislative protection.
In addition Art. XXVIII paragraph 3 provides that "the salaries and allowances payable to the President and the other Judges of the Court and their other terms and conditions of service shall not be altered to their disadvantage during their tenure of office."
The Agreement incorporated into the Jamaican legislation therefore provides for the security of tenure of the Judges and protects them from outside influences.
In this context it should be noted also that in so far as the Jamaica Court of Appeal is concerned similar constitutional provisions are not entrenched and that section can be amended by a simple majority of both Houses.
As presently constituted therefore the Judges of the Court will enjoy security of tenure which will be protected by the legislation.
In conclusion, nothing has been offered by the appellants to establish that the legislature is in the process of acting ultra vires its powers under the Constitution.
Intervention at Pre-Enactment Stage
The test as to whether relief can be given by the Court at the pre-enactment stage of a Bill is clearly stated by Lord Nicholls of Birkenhead in delivering the opinion of the Board in the case of The Bahamas District of the Methodist Church in the Caribbean and the Americas and other. v. Symonette and Others (2000) 5 Law Reports of the Commonwealth 196 as follows at page 210:
"Their Lordships have already expressed the view that pre-enactment relief should be granted only when, exceptionally, this is necessary to enable the Courts to afford the protection intended to be provided by the Constitution. When that state of necessity exists, to deny the Courts powers to intervene would, ex hypothesi, be a failure to safeguard citizens'...
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