R v Commissioner of Correctional Services, ex parte Fitz Henry
| Jurisdiction | Jamaica |
| Judgment Date | 01 October 1976 |
| Date | 01 October 1976 |
| Court | Supreme Court (Jamaica) |
(Parnell, Melville and Carey JJ.A.)
International law in general — Relation to municipal law — Application of international law by municipal courts — Whether only required where international law accepted as part of municipal law — International law principles of State succession with regard to treaties — The law of Jamaica
States as international persons — State succession — International conventions — Extradition treaty between United Kingdom and United States made applicable to colony of Jamaica — Whether in force for Jamaica after independence —“Clean slate” theory — Meaning — Whether applicable — Conduct of parties concerned — Whether relying on continued existence of treaty — The law of Jamaica
States as international persons — State succession — Continuity of the law — Extradition Treaty between United Kingdom and United States — Applicable to colony of Jamaica through Order in Council — Whether in force for Jamaica after independence — Constitution of Jamaica 1962 — The law of Jamaica
Treaties — Termination of — By operation of law — In general — State succession — Whether treaties concluded by predecessor State continue in force for newly independent State —“Clean slate” theory — Meaning of — The law of Jamaica
States as international persons — State succession — In matters of extradition — Extradition treaty between United Kingdom and United States — Applicable to colony of Jamaica under Order in Council — Whether in force for Jamaica after independence —“Clean slate” theory — Meaning — Whether applicable — Conduct of parties concerned — Whether relying on continued existence of treaty — Constitution of Jamaica 1962 — Continuity of the law — The law of Jamaica
Summary: The facts:—Fitz Henry was a Jamaican national awaiting extradition from Jamaica to the United States. The resident magistrate had ordered the extradition because he was satisfied that there was in existence an extradition treaty between the United States and Jamaica. Fitz Henry applied for a writ of habeas corpus, contending that the extradition treaty in question had been concluded before Jamaica became independent in 1962 and therefore, according to the “clean slate” theory, was not in force for Jamaica after independence unless there was any evidence of conduct to the contrary. The Ministry of Foreign Affairs produced evidence showing that an extradition treaty between the United Kingdom and the United States had existed before 1962 and had been made applicable to Jamaica by an Order in Council. Furthermore, in an exchange of letters in 1962 between the Prime Minister of Jamaica and the British High Commissioner of Jamaica, independent Jamaica assumed all responsibilities and enjoyed all the rights under treaties which the United Kingdom Government had made with a foreign government and subsequently made applicable to the former colony of Jamaica. After independence Jamaica made several extradition orders pursuant to the Extradition Treaty.
Held:—The application was refused.
Per Parnell J.: The “clean slate” theory meant that a newly independent State was not bound to maintain in force any treaty which its predecessor State may have made applicable to it. However, if the newly independent State were to take the view that it would be in its interest to continue the treaty there was nothing in the clean slate theory which could prevent it from becoming a party to it. The Extradition Treaty continued in force because the Jamaican Constitution of 1962 provided that all laws which were in force before independence continued in force thereafter. Since independence both Jamaica and the United States had behaved as if the Treaty was in force.
Per Carey J.: The Order in Council which incorporated the Extradition Treaty had not been repealed and therefore remained in force as part of municipal law. Although the Treaty had international consequences, the courts had to apply municipal law and not international law save where international law had been accepted as part of municipal law. Even if international law principles were applicable to this case, the result of the application would be the same because the parties concerned had signified their agreement by conduct to continue the Treaty after independence.
The following is the text of the judgments delivered in the Supreme Court:
PARNELL, L, J.: On July 7. the application for a writ of habeas corpus was unanimously refused. We promised to put our reasons in writing. This we now do.
The applicant was committed in custody on May 5, 1976, by the resident magistrate, Saint Andrew, to await his return to the United States to answer a federal charge relating to ‘the purchase and sale of counterfeit obligations of the United States’. The history of the case may be briefly put as follows:
On September 9, 1971, a Grand Jury in the District of New Jersey, filed an indictment charging the applicant with a violation of a statute, to wit, s. 473 of Title 18 of the United States Code, in that ‘on or about July 22, 1971, at Paterson, New Jersey, he did knowingly and wilfully sell, transfer and deliver counterfeit obligations of the United States, to wit, 80 counterfeited ten dollar Federal Reserve Notes, with the intent that the same be passed, published, and used as true and genuine’.
On March 30, 1972, the applicant entered a plea of guilty to the indictment. He had previously entered a plea of not guilty. Bail was offered to the applicant to appear for sentence. Notice having been sent to the applicant directing him to appear, he failed to answer. And on August 11, 1972, a bench warrant was issued for his arrest.
The applicant is a Jamaican. He escaped to Jamaica and thereafter extradition proceedings were instituted in the United States for his return. And on August 27, 1975, a formal request for his extradition was received by the then Ministry of External Affairs. On October 15, 1975, the formal request was approved by the Minister of National Security and Justice.
After a hearing lasting for five days before His Honour. Mr. B. L. Myrie, the resident magistrate, Saint Andrew, during which he listened to lengthy legal arguments, on behalf of the interested parties, he committed the applicant to await his return to the United States. The findings of the learned resident magistrate, are outlined as follows:
‘The court is satisfied—
(a) that there is in existence a Treaty between the United States of America and Jamaica;
(b) that the crime is an extraditable one;
(c) as to the identity of Fitz Henry, as the person who was convicted by a court of competent jurisdiction in the United States of America, of the crime;
(d) that the evidence before it is sufficient to justify committal of the said Fitz Henry to await his return to the United States of America.’
It was proposed to launch an attack against the order of the resident magistrate on several grounds. When the matter came before us, however, Mr. Grant, who carried the burden of maintaining the arguments in the absence of his leader, abandoned several of the grounds and rested the applicant's complaint on two main points which were argued together. I have tried to simplify the points. They may be shortly put as follows:
(1) There is no valid or binding treaty arrangement between Jamaica and the United States with regard to extradition.
(2) That if consequent on the independence of Jamaica, a new treaty arrangement concerning extradition was concluded between Jamaica and the United States, no statute, law or other legislative reference since independence can be found which makes the concluded treaty effective in law.
Before I deal with the main arguments of Mr. Grant, which I shall outline hereafter, it would be better if the evidence before the resident magistrate touching the two points were to be outlined.
The resident magistrate heard the evidence of Mr. Louis Boothe, the Director of Protocol in the then Ministry of External Affairs, now named the Ministry of Foreign Affairs. Mr. Boothe was speaking for the Executive Arm of the Government of Jamaica and must be deemed to be airing the views of the appropriate Minister for Foreign Affairs. He told the learned resident magistrate:
‘There is a treaty between the United States of America and the United Kingdom relating to extradition. That treaty is still in force. The treaty is applicable to Jamaica.’
Mr. Boothe referred to the Jamaica Gazette of August 15, 1935. The Order in Council making applicable to Jamaica, an Extradition Treaty between the United Kingdom and the United States was published for general information. He also referred to the Order in Council dated June 11, 1942, which directed that the Extradition Law of the Jamaica Legislature ‘shall have effect in the Colony of Jamaica as if it were part of the Extradition Act 1870’.
The Jamaica Gazette of April 25, 1963, shows that on August 7, 1962 (the day after independence), there was an Exchange of Letters between the Prime Minister of Jamaica (who was also Minister of External Affairs and Defence) and the British High Commissioner in Jamaica in which it was declared that as from August 6, 1962, Jamaica agreed to the following:
(a) to assume all obligations and responsibilities of the Government of the United Kingdom which arose from any valid international instrument by virtue of authority entrusted in the United Kingdom Government and made applicable to Jamaica;
(b) to enjoy all rights and benefits heretofore enjoyed by the United Kingdom Government in virtue of the application of any such international...
To continue reading
Request your trial