Marshall Burnett Commentaries: 3

Separation of powers and the CCJ

By: Dr Hamid Ghany

Source : Trinidad Guardian

February 20, 2005

The recent judgment by the Privy Council in the matter of the Independent Jamaica Council for Human Rights (1998) Ltd vs the Hon Syringa Marshall-Burnett and the Attorney General of Jamaica (Privy Council Appeal No 41 of 2004) that was handed down on February 3, instant has opened a major debate about the protection of the Separation of Powers in all of the member states who will share the jurisdiction of the Caribbean Court of Justice (CCJ).

According to the Privy Council:
“The three Acts do not, singly or cumulatively, weaken the constitutional protection enjoyed by the higher judiciary of Jamaica.

The question is whether, consistently with the constitutional regime just described, a power to review the decisions of the higher courts of Jamaica may properly be entrusted, without adopting the procedure mandated by the Constitution for the amendment of entrenched provisions, to a new court which, whatever its other merits, does not enjoy the protection accorded by the Constitution to the higher judiciary of Jamaica.

In answering this question, the test is not whether the protection provided by the CCJ Agreement is stronger or weaker than that which existed before, but whether, in substance, it is different, for if it is different, the effect of the legislation is to alter, within the all-embracing definition in section 49(9)(b), the regime established by Chapter VII.

The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and 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.

But Dr Barnett is correct to point out that the Agreement may be amended, and such amendment ratified, by the governments of the contracting states, and such amendment could take effect in the domestic law of Jamaica by affirmative resolution. The risk that the governments of the contracting states might amend the CCJ Agreement so as to weaken its independence is, it may be hoped, fanciful. But an important function of a constitution is to give protection against governmental misbehaviour, and the three Acts give rise to a risk which did not exist in the same way before.

The Board is driven to conclude that the three Acts, taken together, do have the effect of undermining the protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution. From this, it follows that the procedure appropriate for amendment of an entrenched provision should have been followed.” (para 21).

The Privy Council has concluded that the mechanism of amendment of the provisions of the CCJ Treaty are such that the domestic law of Jamaica would have been adversely affected if the legislation giving effect to the provisions of the Treaty in respect of the Judiciary had been implemented.

The Separation of Powers is one of the sacred components of every Constitution in the Commonwealth Caribbean and the means by which it is implemented in each Constitution has to be gleaned from the Constitution itself.

The danger in Jamaica (and by extension in those other Commonwealth Caribbean countries that share relatively similar constitutional provisions as Jamaica) is that the Executive and the Legislature will gain the upper hand over the Judiciary when compared to the existing constitutional provisions.

As it stands now, judges are protected from easy removal by the fact that the Judicial Committee of the Privy Council enjoys the right to make the final determination in respect of the removal of a Chief Justice or a Judge.

Prime Minister Manning clearly established that point in his address to the Senate last Tuesday, in respect of the current controversy in this country involving the Chief Justice and the Executive. He clearly had to cite the fact that the Privy Council would have the final say in order to assuage the population. Would the population be equally as assuaged if the CCJ was the final arbiters in the matter?

The reality is that this controversy in Trinidad and Tobago when coupled with the recent Privy Council judgment serve to weaken the case for the CCJ primarily because there is no political consensus in the region at the level of the wider population, or across the political aisles in each of the countries, for us to have a CCJ.

The political management of how the CCJ is to be introduced has been grossly mishandled and this Privy Council judgment has blindsided Caricom. Within two weeks of that judgment, the controversy in Trinidad and Tobago has provided food for thought about the ramifications of weakening the Separation of Powers in relation to the Judiciary.

After all, it would only take an affirmative resolution by the Jamaican Parliament to confirm the alteration of the Treaty to weaken the Separation of Powers. The proposal for change would come from the Heads of Government and the national Parliament would be dominated by a Government majority so that affirmative resolution is guaranteed (without a special majority). There would be no need for a time delay of six months, a special majority in both Houses of Parliament and a referendum to effect the changes as is the case now in Jamaica.

Caricom has also to understand that three member countries have suffered political instability over the years to the extent that the constitutional government was overthrown, namely Haiti, Suriname and Grenada.

Trinidad and Tobago almost joined that category in 1990, while Guyana had a long history of political abuse during the Burnham years and Caricom did nothing.

The environment in which the CCJ is expected to operate must be politically stable, otherwise the Treaty will be meaningless if there is a period of prolonged bickering about recognising a government, such as is happening now with Haiti in Caricom.

Are we prepared to surrender our court system and its existing protection so easily in the name of completing our cycle of independence?

Or, would we prefer to satisfy ourselves that there is widespread consensus for the change and an equal level of protection for our Judiciary before we give away what we have?