November 29, 2009


Sunday, November 29, 2009

Source: Jamaica Observer Editorial

It would appear, from yesterday's lead story in our sister title, that the country is on the cusp of replacing the Judicial Committee of the London-based Privy Council with the Caribbean Court of Justice (CCJ).

According to National Security Minister Dwight Nelson, Cabinet will make a decision to accept or reject the CCJ as the country's highest judicial authority once it receives a report on its status from the parliamentary sub-committee that was set up to examine the issue.

Given the recent train of developments, including the complaint by Lord Nicholas Phillips, president of the United Kingdom Supreme Court, that appeals from countries like Jamaica are taking up too much of his colleagues' time, we don't suppose the Government has any option but to log on to the CCJ.

This, in principle must be right, representative as it is of yet another step towards true independence.

However, while we believe that the time has come for us to fully embrace the CCJ, we are rather perturbed about the narrowness of the context in which the debate seems to be taking place.

For it seems that the CCJ is being sold on the perceived strength of its capacity to resolve the contentious issue of crime through the reintroduction of the death penalty as opposed to its significance as a symbol of the coming of age of a region which has made significant strides in its struggle to shake the unfortunate colonial legacy which has held it back in so many ways for so many years.

We believe more time and energy need to be spent on this aspect of the matter as we get ready as a country and a region to embrace the CCJ.

And much needs to be done by way of educating our people about the shift away from what for many represents the only true shot at attaining justice within the context of the under-staffed, resource-starved ramshackle local tiers of our legal system.

But, as we have often argued in this space, while we have concerns about the pace and inadequacies of the local justice system, this newspaper has never doubted the quality and integrity of jurisprudence in the Caribbean. Neither do we share the fear of opponents of the CCJ that the court could be tainted by political interference.

However, we can't ignore the fact that the Privy Council has, through its rulings over many decades, reversed many an injustice that would have otherwise been allowed to wreck the lives of ordinary Jamaicans who have been victims of local cronyism on the part of those in charge of various institutions here.

These Jamaicans will tell you that they had never viewed the local talent here as anything but obstacles enroute to the Privy Council where they expected to get justice in the long run.

It would be a great misfortune if the CCJ were to be similarly perceived.



Source: Jamaica Observer

Published: Sunday, November 29, 2009

Queen Elizabeth II arrived in Trinidad and Tobago last Thursday for the Commonwealth Heads of Government Meeting to what must be good news for the monarchy: The people of St Vincent and the Grenadines had voted decisively in a referendum to retain her as their Queen and head of state.

The "No" vote of 55.64 per cent was a huge rebuff for Prime Minister Ralph Gonsalves who may have timed the vote to coincide with the Queen's presence in the Caribbean, hoping that an affirmative "Yes" would have been a triumphal way to say goodbye to a powerful symbol of British colonial rule.

While the referendum results are of primary interest to the people of St Vincent and the Grenadines, it is also significant for other regional countries, especially Jamaica where political administrations have wrestled with the same constitutional question the Vincentians have just settled.

A yes vote would have allowed St Vincent and the Grenadines to join Trinidad and Tobago, Dominica and Guyana as the only Caribbean Community (Caricom) countries to sever constitutional ties with Buckingham Palace and select their head of state from among their own people.

Guyana has an executive president, which makes Bharrat Jagdeo head of state and head of government; while Dominica and Trinidad and Tobago have 'ceremonial' presidents with effective power remaining in the hands of the prime minister.

Since the 1970s Jamaica has been engaged in a tortuous constitutional reform process, including breaking ties with the Queen as head of state and establishing a republic similar to Trinidad's. However, the issue has never been put to the people as successive administrations remain spooked by the 1961 referendum against West Indian federation promoted by Norman Manley and the People's National Party (PNP) and opposed by Alexander Bustamante and the Jamaica Labour Party (JLP).

One of the questions arising from last Wednesday's referendum result is the extent to which Caribbean people wish to retain links to British symbols. Or was it simply a statement on the stewardship of Prime Minister Gonsalves?

The referendum would have replaced the St Vincent constitution in force since independence in 1979. The "No" vote of 55.64 per cent was well short of the required two-thirds threshold.

How could Prime Minister Gonsalves have got it so wrong? What happened since the last general election in 2005 in which he and his Unity Labour Party (ULP) got 55.26 per cent of the vote and 12 of the 15 seats in Parliament?

In the campaign leading up to the vote, the prime minister stressed that although he had nothing personally against Queen Elizabeth II, it was time for Saint Vincent to stop having a monarch as its head of state: "I find it a bit of a Nancy story that the Queen of England can really be the Queen of Saint Vincent and the Grenadines."

According to some St Vincent watchers, the referendum result may be a reflection of some unease among voters for the prime minister's reputed affinity towards executive presidents Hugo Chávez of Venezuela and former Cuban leader Fidel Castro.

However, that view was contradicted by the campaign rhetoric in which Mr Gonsalves asserted that the proposed constitution for Saint Vincent and the Grenadines would not have created an executive president because that would give the office holder too much power in the small country, he said in an interview reported in the Trinidad Express.

On the other hand, the Opposition New Democratic Party (NDP) advocated for a "No" vote on the proposals, disputing Mr Gonsalves' assertion that a "Yes" would reduce the power of the prime minister, increase the power of the Opposition and strengthen the country's democracy.

Lessons for Mr Golding

What lessons can Prime Minister Bruce Golding draw from the outcome in St Vincent as he contemplates the idea of a referendum to determine whether Jamaica should adopt the Caribbean Court of Justice (CCJ) as the country's final court of appeal, replacing the British Privy Council?

As it stands, Jamaica can adopt the CCJ as its final court of appeal without a referendum, according to expert opinion. However, in order to entrench the court in the Jamaican constitution the people of Jamaica must agree in a referendum. The argument is that because the Privy Council is now entrenched in the constitution, any court that replaces it would also have to be entrenched.

While I support the CCJ as our final appeal court, I also believe that this matter must be put to a referendum, given divided opinion on the issue.

These divisions may have been sharpened last week by the Privy Council ruling in favour of Mr Ezroy Millwood and the National Transportation Cooperative Society. Some will view the judgement as justice, finally, for the beleaguered franchise, while others may regard it as an imposition by 'foreign' judges that will cost taxpayers some $1.85 billion.

Of course, one way of securing a predicted outcome in a referendum is where the two parties - governing and opposition - agree on the matter to be decided and neither would seek to take advantage of the other. But even here the outcome may not be assured.

Speaking with Beverley Manley on Hot 102 the day after the losing the vote in St Vincent, Mr Gonsalves indicated that the two parties had earlier agreed to support the "Yes" vote. His clear implication was that the opposition had backtracked.

News out of St Vincent offered an explanation for the change of heart: NDP leader Arnhim Eustace opined that the two sides had failed to reach an agreement on a number of fundamental issues, including the Integrity Commission, the Human Rights Commission, the ombudsman, and the Electoral and Boundaries Commission.

In other words, the opposition appeared to have tied its support for a "Yes" vote to other issues of human rights and accountability, which it considered important. Or they may have smelled that the government was politically vulnerable.

Thus, another lesson is that a referendum is not always about the specific item on the ballot paper and can easily become a statement on the performance of the government. Simply put, referenda are fraught with political danger.

In the context of the current economic challenges faced by all governments in the region, voters are concerned about the ability of incumbents to increase opportunity, improve living standards and maintain social peace. Opposition parties are sniffing power.

Finally, it may also be that a majority of voters want to retain their connection and find no problem with an anachronism of a governor general as the Queen's representative in Jamaica instead of being a symbol of the Jamaican people.

It is also significant that the vote came as the 53-member grouping of Britain and its former colonies spread across the globe was meeting in Port of Spain trying to find relevance in the new balance of power in the world.

In these circumstances, Mr Golding is unlikely to test the waters about entrenching the CCJ any time soon. On the larger issue of changing the Jamaican constitution to have a president as the Jamaican head of state, we can, in the famous words of former prime minister PJ Patterson, 'forget it'.

Jamaica 'stripped'

Published: Sunday | November 29, 2009

Source: Jamaica Gleaner

AN AUTHOR of the country's Constitution has warned that Jamaicans might no longer enjoy the right of appeal to the Judicial Committee of the Privy Council.

David Coore, the first chairman of the People's National Party (PNP) and one of the authors of the Constitution, has warned that the United Kingdom Parliament has changed the structure of the Privy Council and this could strip Jamaicans of the right of appeal.

"The Constitution had committed to the Judicial Committee of the Privy Council as the country's final court of appeal. The English Parliament has made such a radical change by amending the law establishing the Judicial Committee of the Privy Council and which has just come into effect, that it can be legitimately contended that the Privy Council court which was put into our Constitution has been superseded by a new court, which, though bearing the same name, is substantially different from that which existed in 1962," Coore said.

He was speaking at the People's National Party Youth Organisation (PNPYO) 40th anniversary awards banquet at the Terra Nova Hotel last Thursday.

Serious problem

Said Coore: "This could raise a serious problem of constitutional law, with far-reaching consequences, because our Constitution committed to something called the Judicial Committee of the Privy Council, but that to which we committed ourselves no longer exists in the form that it did when we made that commitment.

"It may well be the case that there is no longer anything to which our Constitution provision shall apply. The far-reaching consequences of that could be obvious," Coore said, as he called for the Government to replace the Privy Council with the Caribbean Court of Justice.

This issue has been a major source of disagreement between the PNP and the governing Jamaica Labour Party (JLP).

The PNP is adamant that Jamaica should abandon the Privy Council, but the JLP has argued that the people should decide the fate of the court by way of a referendum.

"We are in the ridiculous position that we are paying our share of the cost of the CCJ but only able to access its original jurisdiction, which is confined to trade disputes," Coore said.

He added: "We are in the ridiculous situation of paying for a court that we do not use, while claiming to be able to use a court that regards us as an unwanted burden and may no longer exist."

Honour commitments

Coore told the PNPYO that it should work closely with Generation 2000 (G2K), the young professionals' affiliate of the JLP, to pressure their parent parties to honour commitments for constitutional reform.

"Both youth organisations should join together to insist that their respective parties take the issue of constitutional reform seriously and act upon it," Coore said.

"There are many aspects of our Constitution that need to be rectified and brought into the 21st century," he said, pointing to removing the British queen as head of state as one desirable amendment.

"It is ridiculous for us in the 21st century to have as our head of state, a hereditary monarch of another country, to which we need to have a visa to enter and special permission to remain," Coore said.

November 28, 2009


If Cabinet approves, UK Privy Council will be replaced

Source: Jamaica Observer

BY GARFIELD MYERS Editor-at-Large South/Central Bureau

Saturday, November 28, 2009

The Government is closer to a decision on whether to replace the United Kingdom-based Privy Council with the controversial Caribbean Court of Justice (CCJ) as the nation's final court of appeal, an administration official disclosed.

National Security Minister Dwight Nelson told a packed hall during a Crime Forum at the Golf View Hotel here Thursday night that a sub-committee of Cabinet, chaired by the deputy prime minister, had been set up to examine the "status of the Caribbean Court of Justice".

Once the sub-committee's report was received, Nelson said, "Cabinet will then make a decision as to the Government's position on the Caribbean Court of Justice. If that decision is to embrace the Caribbean Court of Justice, then the Privy Council will be replaced."

Should the Bruce Golding-led Government support the switch to the CCJ, it would represent a major about face from its period in Opposition when it stridently opposed such efforts by the then People's National Party (PNP) Government.

In 2005, Golding's Jamaica Labour Party (JLP), in partnership with rights groups, successfully challenged the setting up of the CCJ as Jamaica's highest court when the Privy Council ruled that such a move would be unconstitutional without endorsement from a referendum or a two-thirds majority in both houses of the Jamaican Parliament.

The JLP claimed at the time that the Court ruling was a victory for justice and the rights of citizens. "We feel that it is more than just a vindication of the position taken by the Jamaica Labour Party. It is indeed a vindication of the rights of the Jamaican people," Golding was quoted as saying at the time.

With the Opposition People's National Party (PNP) continued insistence that the CCJ is the way to go, a turn-about by the JLP would presumably guarantee the required two-thirds majority in Parliament.

Both Nelson and a trio of prominent PNP parliamentarians at the forum - Peter Bunting, the Opposition spokesman on security and the brothers, Dean and Michael Peart - sought to reinforce the message that Government and Opposition were working closely to combat crime through legislative and other measures.

Jamaica's maintenance of the UK-based Privy Council as its final appellate court has come under increasing pressure in recent months, following a statement by Lord Nicholas Phillips, the president of the UK Supreme Court, that the law lords were spending a "disproportionate" amount of time on cases from former colonies, especially the Caribbean.

Currently the appellate jurisdiction of the four-year-old CCJ is limited to Barbados and Guyana, while Jamaica has acceded to its trade provisions for purposes of resolving possible trade disputes.

The 1998 Pratt and Morgan ruling by the British Privy Council that those held on death row for five years or more must have their death sentences commuted fuelled the drive in the Caribbean to set up its highest court.

Inevitably on Thursday night, the non-implementation of the death penalty was a central issue at the crime forum. And Nelson made it clear that he was anxious to have the death penalty for convicted capital murderers resumed.

There have been no State-sanctioned hangings of convicted murderers in Jamaica since 1988 and while the Jamaican Parliament voted in favour of keeping the death penalty on the law books late last year, there is still no indication of a resumption.

The minister told impatient members of the audience on Thursday night that the appeals process in conjunction with the time limitations of the Pratt and Morgan ruling had made it difficult.

"The one way to deal with that is to do as one other Caribbean country has done and that is to change the Jamaican law," Nelson said.

"I know Peter (Bunting) that I will be talking to you about that, because we have to make sure that if you are there for more than five years that we still have the right to hang.

"There were about six people on death row up to recently and because five of them pass the five-year limit, their sentences have been commuted to life. Only one person now below the five-year limit that is eligible to hang (and) believe you me, I am dying to hang one of them." Nelson said to loud applause.

Nelson later told the Observer that he had formed the impression that lawyers representing convicted murderers were frustrating the process.

"Sometimes it is deliberate on the part of the condemned person and their representative," Nelson said. "Sometimes the process is drawn out, sometimes they wait to lodge the appeal and this allows for the expiration of the five-year limit and it is something we are going to have to look at to ensure that appeals are lodged timely and dealt with expeditiously," the minister said.

November 25, 2009

Will the Caribbean take the leap of faith?

by Alan Cordova and Justin Vance

Source: The Panama News : Vol 9 Number 15 August 3 - 16, 2003

In its July 5 Rose Hall Declaration, the Caribbean Community (CARICOM) again expressed its dedication to the goal of implementing the Caribbean Single Market Economy (CSME), a proposed regional free trade zone allowing for free movement of labor and capital, common external tariffs and a single monetary standard. However, words will not easily translate into action because formidable political obstacles bedevil CARICOM's bold new plan. Now, time is running out for the trade bloc. With the US pushing for the implementation of its Free Trade Area of the Americas (FTAA) in 2005, Caribbean nations would be wise to present a united front to avoid being steamrolled by the world's most powerful economy. To do this, members must be willing to sign on to multilateral agreements instead of continuing to pursue narrow self interests at the expense of CARICOM's legitimacy and the region's long-term welfare.

So far, some CARICOM members resemble players involved in the prisoners' dilemma, in which an individual betrays his comrades in order to better his own situation. Such behavior by a CARICOM member undermines the authority of the organization by destroying the trust underlying such multilateral agreements, endangering the fulfillment of the group's common goals. Jamaica's behavior closely fits this paradigm. In 2002, it signed an air services agreement with the US Federal Aviation Administration instead of participating in CARICOM's collective negotiations with this agency. However, Kingston argues that to depend on the slow- moving CARICOM bureaucracy would have further jeopardized Jamaica's hard-pressed tourist industry.

As part of the CSME, the focus has been on allowing the free movement of labor across national boundaries. However, unrestricted transit is a highly contentious issue for the Bahamas, which fears that its economy will be inundated by foreign laborers, causing its unemployment to swell. As Prime Minister Hubert A. Ingraham explains, "the 'free movement of people' aspect of the SME would have serious social and political implications for the Bahamas, given its unique position as the target for massive unregulated migration from many countries." Although The Bahamas' situation is indeed unique, with a far lower unemployment rate and higher per capita GDP the CARICOM average, in stalling the labor agreement, the Bahamas has defrauded its neighbors in order to protect its own interests. If the CSME has any hope of realization, CARICOM must discourage this behavior by instilling a desire for cooperation among individual nations.

In order to achieve this required level of trust, CARICOM must establish itself as a legitimate source of policy coordination by developing effective institutions. While the existing Caribbean Court of Justice (CCJ) is an integral part of the overall design, CARICOM must create additional regional institutions aimed at removing economic barriers and achieving political integration, following the example of the EU in the 1980s. The linchpin of the emerging CSME should be a representative governing council able to promote new policies, overseeing deadlines for implementation and assessing fines and penalties when nations renege on their responsibilities.

A strong layer of governance must supercede the fifteen individual national governments and negotiate in all of their names. Currently, CARICOM has a system of "consultations" in which member nations hold meetings with concerned parties to discuss specific issues. Unfortunately, they often conclude with a joint statement that sets out ambitious goals and but no mechanisms to enforce them. In order to effectively govern a single market, CARICOM needs to create a powerful, representational council that announces area-wide policy and empowers the court to solve regional disputes.

As the various members' objections have demonstrated, CARICOM cannot forge a single market economy overnight. Realistically, it must take carefully planned steps that both preserve national sovereignty and makes progress towards regional unification part of the transitional process. Rather than focusing on freeing up the factors of production, CARICOM must begin by unifying the current individual finance systems, both on a public scale with such institutions as the Caribbean Development Bank, and on a private scale with a regional stock exchange. CARICOM ultimately could be the manager of collective resources and fund shared enterprises and initiatives, such as a regional airline, that could demonstrably revitalize faltering national economies.

At a fundamental level, CARICOM must be more than a forum for policy discussion --- it must become a true supranational institution inheriting basic governmental responsibilities. To grant it legitimacy, each country must comply with regulations and sacrifice some of its sovereignty in order to achieve the greater interests of the community. With the 2005 FTAA deadline fast approaching, CARICOM must follow the road to economic integration, come up with a better idea, or watch as the dream of a globally competitive Caribbean vanishes.

November 24, 2009

Jamaica and the Caribbean Court of Justice and regional integration

Commentary: Jamaica and the Caribbean Court of Justice and regional integrationPublished on Tuesday, November 24, 2009
By Oscar Ramjeet
Source: C

Dr Oswald Harding, who was the attorney general of Jamaica when the Caribbean Court of Justice (CCJ) was first touted in the late 1980s and the early 1990s, has explained to me why Jamaica has not yet abolished appeals to the Privy Council and joined the CCJ as the final court.

The former Jamaica Attorney General and his Trinidad and counterpart, Selwyn Richardson, were moving from island to island encouraging governments to join the regional court, but after 20 years these two countries are still to accept the CCJ as the final Court.

Dr Harding, who is now the President of the Senate, in an exclusive interview with me said that the Jamaica Labour Party (JLP) has always been in favour of the regional Court, but said that there were a few distractions in the 1990s: Richardson was murdered and the JLP lost the government among others.

He explained that the Peoples National Party government under P.J. Patterson then started to railroad activities in a move to remove the Privy Council as the final court by passing legislation without consulting the JLP, which was later struck down by the London-based Privy Council.

He added that the Jamaican government is contributing 27% of the costs to run and administer the Court and has not been getting any benefit whatsoever since it has not joined the Appellate Division because the Privy Council is still the final Court and he referred to the attitude of the CCJ Judges.

The Senior Counsel said that he is not happy with the composition of the Court and pointed out that seven highly qualified and experienced Jamaican lawyers had applied for a position in the Court, but they were all turned down in favour of less experienced candidates.

Touching on talks and discussions about Caribbean integration, the President of the Senate referred to a publication "integrate or perish". He said that there is too much talk and less action in this regard and referred to the stand taken by some regional governments on the question of freedom of movement.

He said that some governments change the goal post when it is convenient to them and there must be a change of attitude.

Meanwhile, Jamaican Attorney General, Dorothy Lightbourne, indicated to me that her country is about to take steps to remove the Privy Council as the final Court, and Belize Prime Minister Dean Barrow has already tabled a Motion in Parliament to amend the Constitution to facilitate the CCJ as the final Court.

In fact the Belize Government, although there is no need for a referendum to effect the change, has launched public aware consultations throughout the country to sensitise constituents on the proposed constitutional changes.

A few other countries, including Grenada, St Lucia and St Vincent and the Grenadines, have signalled their interest in joining the regional Appellate Court as well.

The Trinidad and Tobago Government is willing to go on board, but before it can do so it has to get the sanction of the Opposition since it requires two thirds majority in order to secure the amendment.

Only two countries, Guyana and Barbados, are members of the Appellate Jurisdiction of the Court, which was established more than four years ago.

November 23, 2009


By Rickey Singh

Source: The Jamaica Observer

Published : Sunday, November 22, 2009

THE court battle to block a national referendum taking place this Wednesday (Nov 25) on a new constitution for St Vincent and the Grenadines may turn out to be a case of too much, too late.

Last Wednesday (Nov 18) a High Court judge chose tomorrow (Monday) to begin the hearing of the petition filed by a four-member "no vote committee" seeking to block the referendum, called to either endorse or reject the proposed new constitution.

The committee members, known to be associated with the parliamentary opposition New Democratic Party (NDP) of Arnhim Eustace, are contending that it was unlawful, discriminatory and immoral for state funds to be made available only to the "yes vote" campaigners of the governing Unity Labour Party (ULP) of Prime Minister Ralph Gonsalves.

Lawyers for the state, on the other hand, plan to outline why the application to fund the "no vote" referendum campaign should be dismissed as being without merit, frivolous and vexatious.

At stake for the government is the big challenge of securing a "yes vote", with two-thirds of the eligible electorate, for the new post-independence constitution.

Among its significant features will be the end to a governance system with the British monarch as Head of State and replacement of the Privy Council with the Caribbean Court of Justice (CCJ) as the country's final appellate institution. Empowerment of the parliamentary opposition is also another major provision.

The immediate challenge is for the government's legal team to succeed, either tomorrow (Monday) or on Wednesday, in getting the presiding judge to grant a customary seven-day period for a response to the petition filed by the "no vote committee".

It is the prevailing view in legal circles that it would be consistent with established practice for the judge to allow the argument in favour of the respondent.

This therefore means that while the legal battle is being waged in the High Court in Kingstown on Wednesday, Vincentians will be casting their ballots at polling stations on referendum day - for or against the new constitution.

The question being discussed in political and legal circles is whether this scenario amounts to a national issue of too much, too late.

Too much, that is, to ignore parliament's stamp of democratic approval for the new constitution to be endorsed, or rejected, at a national referendum; and too little in terms of an apparent feeble effort - no known militant, focused opposition, and at a comparatively late stage, to block Wednesday's historic decision by the electorate.

Although approved by a two-thirds parliamentary majority last September 3 in the 15-member House of Assembly, a two-thirds majority is also required at a national referendum for the new constitution to come into force.

The government's response to its opponents has been that the new constitution was approved by a two-thirds majority after widespread national consultations on constitutional reform.

The parliamentary opposition NDP was involved, it said, in both the constitution reform process as well as the parliamentary debates for approval of the new constitution that is now the subject of Wednesday's referendum.

As argued by Prime Minister Gonsalves, funding for the educational campaign on constitutional reform was borne by the state with help from the Organisation of American States.

"Now that the required two-thirds parliamentary majority approval of the new constitution was obtained, I find it strange for the government to allocate state funds for the NDP to oppose the decision of the National Assembly," he said.

Gonsalves' NDP opponents, for their part, have dismissed his argument as engaging "in sheer political sophistry". Nevertheless, clarification has been lacking on why the clamour for state funds in support of a "no vote" campaign was not made during the House debate on Wednesday's referendum.

When told about the moral argument contention of the government's opponents on the sharing of state funds for the referendum campaign, Prime Minister Gonsalves claimed that the NDP had "fallen under foreign influence to create confusion" and was now "panicking" because of the nature of its campaign that "engages in superficialities rather than one of substance".

He said he was "very optimistic" for a required two-thirds "yes" vote (approximately 67 per cent of the voting electorate).

At the last general election of December 2005, the incumbent ULP secured 55.26 per cent of the valid votes and 12 of the 15 seats compared with the NDP's 44.68 per cent vote and three seats.

November 21, 2009

The role of CCJ in new democratic governance - Part 2

Published: Sunday | November 22, 2009

Source: Jamaica Gleaner
By: Dame Bernice Lake, Contributor

Justice Beverly McLachlin, chief justice of the Supreme Court of Canada, in an address in New Zealand in 2004, said: "Interpreting and applying constitutional principles, written and unwritten, requires that the judge hold uncompromisingly to his or her judicial conscience, informed by past legal usage, written constitutional norms and international principles to which the nation has attorned. But judicial conscience is not to be confused with personal conscience. Judicial conscience is founded on the judge's sworn commitment to uphold the rule of law. It is informed not by the judge's personal views, nor the judge's views as to what policy is best. It is informed by the law, in all its complex majesty, as manifested in the three sources I've suggested."

Justice McLachlin is advocating the use of the right tools, an analytical and discovery approach, not an emotional clap of the bosom to invoke the right personal responses. It is an approach we have endorsed, giving respect to the objective majesty of the law, and one which did not envisage an agenda for the courts, or a need for a supportive constituency base.

Justice Saunders may well be right, that this is the kind of loose and unfettered role which our current democratic form of governance needs and which we should confer on the supreme court of the CCJ. However, now that we know his thinking, we should look long and hard before we leap.

I may be wrong, but as I understand Justice Saunders, the CCJ, as the Supreme Court, is an agenda-driven institution, capable of formulating policy and creating law without any corresponding checks and balances and, therefore, is in need of a constituency base to pinch-hit for it when it runs into trouble with the populace. The constituency which he looks to pinch-hit for is the legal profession.

Having carved out the CCJ's policy-making and legislative activities, Justice Saunders outlines 'the role of the Bar as defender of the integrity of the court and justice system': "The difficulty that courts experience when they must determine important matters of policy is that they are called upon to do so without the conventional political resources that are readily available to the other branches of government. . We have no party apparatus to call on for guidance and encouragement, no political organisation ready and equipped to go out and drum up support for the decisions that we must make, nor party machine that can be activated to defend the court from unjustified attacks.

"Yet no institution in a democratic society could become and remain potent unless it can count on a solid block of public opinion that would rally at a pinch. If the integrity of the CCJ is to be maintained at a high level, the court should be able, at all times, to command support and receive encouragement from what should comprise its natural constituency.

"That natural constituency is, of course, the legal profession. It is you, the legal fraternity, upon whom the CCJ must rely to stand up for the right of the court to make the choices we are called upon to make."

'unelected position'

Bearing in mind that, for Justice Saunders, the choices are personal, the CCJ would be an unelected politician dressed in judicial robes, with a specialised unthinking constituency base, unconnected to the general population, focused only on the monstrance of upholding the judiciary, right or wrong. The legal profession would become drones, hovering over the CCJ to protect its law-creating power, rooted in personal choices and not guided by judicial conscience.

In this regard, I reflect upon the observations of Justice Rosalie Silberman Abella of the Supreme Court of Canada, then Justice of the Court of Appeal for Ontario, given on August 7, 2000 at Osgood Hall:

"While all branches of government are responsible for the delivery of justice, they respond to different imperatives. Legislators, our elected proxies, consult constituents, fellow parliamentarians and available research until the public's opinions are sufficiently digestible to be swallowed by a parliamentary majority. And if they cannot be made sufficiently palatable, they are starved for want of political nourishment.

"This is the dilemma all legislators face - they are elected to implement the public will, the public will is often difficult to ascertain or implement, and they are therefore left to implement only those constituency concerns which can survive the gauntlet of the prevailing partisan ideology. At the end of any given parliamentary session, many public concerns lay scattered of necessity on the cutting room floor, awaiting either wider public endorsement or a newly elected partisan ideology.

"The judiciary has a different relationship with the public. It is accountable less to the public's opinions and more to the public interest. It discharges that accountability by being principled, independent and impartial. Of all the public institutions responsible for delivering justice, the judiciary is the only one for whom justice is the exclusive mandate.

"This means that while legislatures respond of necessity of the urgings of the public, however we define it, judges, on the other hand, serve only justice. As Lillian Hellman once said: "I will not cut my conscience to fit this year's fashions." This means that the occasional judgment will collide with some public expectations, which will inevitably create controversy. But judgments which are controversial are not, thereby, illegitimate or undemocratic. They are, in fact, democracy at work .

"What of the role of public opinion? Should judges really transcend these views as they discharge their duties? Probably. Should they be aware of them anyway? Certainly. But first, we have to think about what public opinion really means and why it does not guide the courts the way it does legislatures."

accept criticism

Judges of the Supreme Court should not be afraid of criticism, especially by those best informed to criticise and filter the adjudication process to the population. It is part of the accountability process.

If we muzzle those best equipped to afford this corrective balance, then we fall on a slippery slope until chaos halts the fall at the bottom of the slope.

This is a central issue of the debate on the acceptance of the CCJ as the final appellate court, and the time is critical when we are considering constitutional reform. How will the CCJ be translated into our constitutions and what will be the scope of its powers?

constitutional limitations

It seems to me that we should be considering and devising constitutional limitations upon the power of the CCJ to convert itself into a supreme and unlimited law-making body. This is a matter for the dynamics of any new constitution of the respective nation states.

If the law-making power of Parliament is constitutionally limited in a constitutional democracy, the CCJ's power to review the laws passed by parliament should also be subject to limitations. That is what balance amounts to and requires.

Like the legislature and the executive, the judiciary derives its powers from the constitution of the individual nation state. Judges are equally subject to the constitution. They can interpret and invalidate laws, declare them to be valid or unconstitutional, void and of no effect but they cannot be allowed to assume the law-making function.

Since we have been put on notice, this needs to be addressed in our new constitutional arrangements and governance before we receive the CCJ as our supreme court.

The legal profession should lead on this aspect of the debate. Their ultimate constituency is the people and their compass the core values which our societies have embraced in a balanced constitutional arrangement where no branch of governance responsibility over-reaches the other, but rather treats the other with respect within the constitutional boundaries, restraints and strictures.



The Rt. Hon. Mr. Justice Michael de la Bastide T.C.

President of the Caribbean Court of Justice

On the occasion of


Hyatt Regency, Port of Spain, 9thNovember, 2009




[1] May I begin by saying how pleased the Caribbean Court of Justice is to be associated with The Caribbean Law Institute Centre and the CARICOM Secretariat in hosting this symposium. We value very highly the ties we have established between the judges of the Caribbean Court of Justice and the members of the Law Faculty of the University of the West Indies at Cave Hill. We have participated in their workshops at Cave Hill and we spent a day together at the Court exchanging views on a variety of legal issues of importance to the region. I notice that this symposium has been designated ‘The Inaugural Symposium’ and I am confident that the promise which is inherent in that designation, of similar symposia to come, will be kept. I too would like to thank the Honourable Prime Minister of Barbados for having honoured us with his presence at this Opening Ceremony and for his address. It is heartening to know that despite his many other commitments he has today given this function priority over them. Thank you Mr. Prime Minister.

[2] I have been given the opportunity of addressing you briefly on developments in judicial protection of fundamental rights in the Commonwealth Caribbean. Given the time constraints I have selected quite arbitrarily a few areas in which these developments have occurred. The first of these areas is that of remedies for constitutional breach and the development here is the emergence of ‘vindicatory damages’, a relatively new addition to these remedies.


[3] What exactly are ‘vindicatory damages’? This question can perhaps be best answered by reference to the purpose which they are intended to serve. Every time a constitutionally protected right or freedom is contravened without an effective response from the courts, the right or freedom breached suffers diminishment. For the court’s response to be effective, it must serve to vindicate the right or freedom infringed by countering the negative effect of its breach. This objective may be achieved at least to some extent, by the award of compensatory damages to the person affected. But there are times when compensatory damages are an inadequate response to the breach. It is in those cases that an additional award of vindicatory or constitutional damages should be made. According to the Privy Council in Attorney General of Trinidad and Tobago v. Ramanoop,[i] this additional award should be made if it is needed “to reflect the sense of public outrage, to emphasise the importance of the constitutional right and the gravity of the breach, and to deter further breaches.”

[4] I think I should place on record what led up to the Privy Council in 2005 placing its seal of approval on the new head of damages described as ‘vindicatory’. In 1979, in the case of Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds[ii] the Privy Council held that exemplary damages (the form of non-compensatory damages available in the field of tort) were not recoverable for breach of a constitutional right or freedom. This was reflective of the more conservative judicial culture that prevailed at that time. The possibility of awarding non-compensatory damages in constitutional cases was nevertheless broached by the Court of Appeal of Trinidad and Tobago in 1997 in Jorsingh v. The Attorney General.[iii] It was raised in obiter dicta by two judges, Sharma JA (as he then was) and myself as the then Chief Justice. I invited the Privy Council when the opportunity next arose, to recognise that damages for constitutional breach could, and should, be used for a wider purpose than simply to compensate a successful claimant. I drew attention to the wide jurisdiction given to the High Court by section 14(2) of the Trinidad and Tobago Constitution to “make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter…”. I suggested that the power given to the court to award damages for constitutional breach was neither limited to providing compensation nor constrained by the rules governing the assessment of damages at common law.[iv] Sharma JA went even further and said:

“Not only can the court enlarge old remedies; it can invent new ones as well, if that is what it takes or is necessary in an appropriate case to secure and vindicate the rights breached. Anything less would mean that the court itself, instead of being the protector, and defender and generator of the constitutional rights, would be guilty of the most serious betrayal”.[v]

[5] There followed the case of Ramanoop in which the trial judge had rejected the claim for exemplary damages for constitutional breach. The Court of Appeal held that he was wrong to have confined himself to compensation. It was in his judgment in that case that Sharma CJ (as he by then was) coined the phrase “vindicatory damages”, which was widely adopted (without attribution) by other judges. The Privy Council endorsed the recognition given by the Court of Appeal to the new head of damages in claims for breach of constitutionally protected rights and freedoms.

[6] In fact, the Privy Council was so receptive to this new remedy that in two cases in 2008, one from St. Lucia (Fraser v Judicial & Legal Services Commission)[vi] and the other from St. Kitts and Nevis (Inniss v Attorney General)[vii], it held that vindicatory damages could be awarded for breach of constitutional provisions other than those which embodied and protected fundamental rights and freedoms. Both these cases involved magistrates whose removal from office was effected in a manner not authorised by the Constitution. In both cases the action was brought pursuant to a provision contained in both of the relevant Constitutions, which gives the High Court jurisdiction to entertain complaints by persons with ‘a relevant interest’, that a provision of the Constitution, other than one contained in the Chapter on Fundamental Rights and Freedoms, had been contravened, and to grant relief both by way of a declaration or by an award of damages. In both cases, the Privy Council held that the dismissed magistrate was entitled, not only to compensatory damages for breach of contract, but also to an award of vindicatory damages. The provision which gave the High Court jurisdiction is found in the Constitutions of the six OECS States but nowhere else in the Commonwealth Caribbean.

[7] One may well ask what then is the position in the absence of such a provision of a person who is adversely affected by the action of some public official or authority which contravenes a provision of the Constitution other than one contained in the Chapter on Fundamental Rights and Freedoms? It would seem that in such a case the aggrieved party would have to proceed by way of judicial review to challenge the action in question. Depending on the local legislation governing judicial review, damages limited to compensation might be recoverable, but nothing beyond that.

[8] The question whether, and if so, how, vindicatory damages are distinguishable from exemplary damages, has provoked a good deal of discussion both by judges and academics. Initially, the tendency was to identify and highlight perceived differences between the two types of damages. For example, the point was made that while exemplary damages are punitive, vindicatory are not. It was also suggested that exemplary damages focus more on the offender while vindicatory damages focus on the right infringed. The differences between them in my view are not all that clear-cut. They are differences more of emphasis than of substance. There is clearly a great deal of overlap between the two. The Privy Council has itself come around to accepting that both forms of damages have a good deal in common. In the recent case of Takitota v The Attorney General[viii] from The Bahamas the Board held that to award both exemplary and vindicatory damages would result in a duplication. In delivering the judgment of the Board Lord Carswell said at paragraph [13]:

“The award of damages for breach of constitutional rights has much the same object as the common law award of exemplary damages”.

[9] My final word on this topic is that I would not like to see the award of vindicatory damages so hedged around with rules and restrictions that its usefulness as a tool for the enforcement of constitutionally protected rights and freedoms, would be impaired.


[10] The more robust approach adopted by the Privy Council in recent times towards the protection of fundamental rights and freedoms, is evidenced also by the indication it has given that it will at the first opportunity abolish the requirement that an allegation of unequal treatment by a public authority must be supported by proof of mala fides. The right to equality of treatment is enshrined in Trinidad and Tobago in section 4(d) of the Constitution. In what was probably the first case in the region based on an alleged infringement of this right i.e. Smith v. LJ Williams Limited,[ix] it was held that the presumption of constitutionality with which official acts are clothed, had the effect of casting on the aggrieved party the burden of proving mala fides on the part of the person against whom the allegation of discrimination was made.

[11] A qualification of this rule was introduced, however, by Persaud JA in the Trinidad and Tobago Court of Appeal in Attorney General v. KC Confectionery Limited.[x] Persaud JA held that as an alternative to alleging and proving mala fides, a party complaining of unequal treatment could succeed by proving “the deliberate and intentional exercise of power not in accordance with law which results in the erosion of the complainant’s rights”. The scope of this alternative has proved somewhat elusive as it has been interpreted and applied to different effect by different judges.

[12] The other two judges in the Court of Appeal (Kelsick CJ and Bernard JA) did not dissent from Persaud JA’s judgment (in fact Kelsick CJ expressly concurred with “the findings of fact and conclusions of law” of both his colleagues) but neither acknowledged any exception to the rule that mala fides must be proved when discrimination is alleged.

[13] It was in the case of Mohanlal Bhagwandeen v. The Attorney General of Trinidad and Tobago[xi] that Lord Carswell in delivering the judgment of the Privy Council gave a pretty clear indication that the Privy Council was leaning towards the view that proof of mala fides was not necessary in order to support a claim of unequal treatment. The Board however, stopped short of ruling on that point saying that they would require “detailed argument on the issue before attempting to express any definite conclusion on the correctness of the proposition accepted by the Court of Appeal i.e. that mala fides was an essential ingredient of actionable discrimination”. The thinking of the Board, however, was clearly signalled in a number of ways. Firstly, Lord Carswell suggested that there “may have been a degree of confusion between two distinct concepts, the presumption of regularity and the necessity for proof of deliberate intention to discriminate”. Secondly, Lord Carswell pointed out that mala fides was no longer required in discrimination cases in the United Kingdom since the decision of the House of Lords in James v. Eastleigh Borough Council[xii] in 1990. Thirdly, Lord Carswell described Deyalsingh J as having “cogently reasoned” at first instance in the KC Confectionery case that both the presumption of regularity and the necessity for proof of mala fides rested on unsatisfactory foundations and should not be accepted as correct.

[14] The rather unsatisfactory state of the law is further illustrated by the divergent judgments in the Trinidad and Tobago Court of Appeal in the case of Central Broadcasting Services Limited & Anor. v. The Attorney General.[xiii] In that case the complainants had applied to the Telecommunications Authority for a broadcasting license. For a number of years their application was neither refused nor granted but while it was pending, a broadcasting license was granted to a company, Citadel Limited, which had applied for a licence several months after the applicants. The Minister had recommended to the Authority that it expedite the application of Citadel Limited and the license to that company was granted at a time when the Authority had decided to suspend the grant of licenses pending the settling of a broadcasting policy. In these circumstances, the applicants claimed that they were the victims of unequal treatment at the hands of the Authority. In the Court of Appeal Mendonça JA held that proof of malice was essential if the applicants were to succeed. He held, however, that mala fides could, and should, be inferred from the intentional and irresponsible act of the Telecommunications Authority in giving preferential treatment to Citadel Limited in the circumstances just mentioned. He held that since no law was broken in this case, it fell outside of the category of case in which Persaud JA’s held that proof of mala fides was not required. Warner JA on the other hand was of the view that mala fides had not been proved but yet upheld the finding of unconstitutionality on the basis that there had been proof of ‘intentional and purposeful’ discrimination and (it would seem) that this served to bring the case within Persaud JA’s second category of case. Hamel-Smith JA did not think that proof of mala fides was necessary and was prepared to rely on the second limb of Persaud JA’s judgment in KC Confectionery. In any case he agreed with Mendonça JA that mala fides could be inferred from the facts of the case.

[15] When the matter came before the Privy Council, junior counsel for the applicant, Mr. Anand Ramlogan, wished to argue that in order to establish actionable discrimination it was sufficient to prove that the party aggrieved had been treated differently from others who were ‘similarly circumstanced’. The Board, however, would not allow him to do so as the Court of Appeal’s finding of unconstitutionality had not been challenged by a cross-appeal by the State.

[16] There is an obvious need for a clear and unambiguous statement of what is necessary to establish a breach of the constitutional right to equality of treatment and the sooner that it is provided, the better. Hamel-Smith JA has pointed out that the requirement of proof of mala fides can be regarded as a fetter on the right to equality of treatment, particularly as those who practise discrimination are often at pains to conceal their motive. This lends weight to the argument that it should be sufficient for an aggrieved party to prove that he was less favourably treated than other persons who were similarly circumstanced, or that someone similarly circumstanced was more favourably treated than him. This argument could be accepted without abandoning the presumption of regularity if it was accepted that the burden on the aggrieved party is not only to prove difference in treatment, but also at least to negative on a prima facie basis the existence of any reasonable or legitimate reason for the difference. This could be regarded as necessarily involved in proving that the persons who were differently treated were similarly circumstanced. Until a final court has spoken authoritatively and decisively on this issue, the law will remain in an uncertain and unsatisfactory state.


[17] Another important and relatively recent development in the protection of constitutional rights in this region has been the introduction of the concept of proportionality into our jurisprudence. This concept is used to assist in determining whether a law that derogates from a constitutionally protected right or freedom is permissible and constitutional or impermissible and unconstitutional. It is generally recognised that fundamental human rights and freedoms are not absolute but qualified. It is usual for constitutions to make provision for derogation from the fundamental rights and freedoms which they enshrine.

[18] In the case of the OECS States, provisions which impinge on the rights and freedoms of the individual are subjected by the terms of their Constitutions to two tests. Firstly, such provisions must be “reasonably required” for certain broad purposes linked to the public interest e.g. defence, public safety, public health, etc., or for the protection of the rights of others. The onus of proof here is on the party supporting the impinging law. The second requirement imposed by these Constitutions is that the impinging law must not be shown to be “not reasonably justifiable in a democratic society”. Here the onus of proof lies on the party challenging the impinging law.

[19] The Constitutions of the other Commonwealth Caribbean States with the exception of Trinidad and Tobago, impose the first only of these two requirements. Finally, in the case of Trinidad and Tobago the fundamental rights and freedoms are stated in absolute terms and there is no provision which saves from invalidity Acts of Parliament passed by a simple majority which are inconsistent with the fundamental rights and freedoms of the individual. There is, however, in the Constitution of Trinidad and Tobago a section (section 13), which preserves the validity of an Act which is inconsistent with a fundamental right guaranteed by the Constitution if that Act has been passed by a three-fifths majority of all the members of each House, declares itself to be inconsistent with the fundamental human rights sections of the Constitution and is not shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. A similar exemption from compliance with fundamental human rights and freedoms is conferred by section 50 of the Jamaican Constitution on Acts passed by an enhanced majority.

[20] What I will refer to loosely as the proportionality test was first applied by the Privy Council in an appeal from the Caribbean in de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries Lands and Housing,[xiv] an appeal from Antigua and Barbuda. The issue in that case was whether a blanket prohibition of all civil servants from expressing opinions on controversial political issues was a limitation on the right of the applicant’s freedom of expression which satisfied the two requirements imposed by the Constitution. For the purposes of the first requirement, the question was whether the prohibition was “reasonably required for the proper performance [by civil servants] of their functions”. The second requirement was that the ban should not be shown not to be “reasonably justifiable in a democratic society”.

[21] It was in relation to the second of these requirements that the Privy Council adopted an approach borrowed from a judgment of Chief Justice Gubbay of Zimbabwe in Nyambirai v National Social Security Authority[xv] which involves the Court asking itself and answering the following questions: “whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objectives are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective”.[xvi] Although the issue of proportionality is strictly speaking raised only by the third of these questions I shall refer to the whole formulation as ‘the proportionality test’.

[22] The Board held that the blanket prohibition failed the proportionality test because it answered the third question in the negative. Accordingly, the Privy Council restored the finding of unconstitutionality made by the trial judge.

[23] The proportionality test was applied by the Privy Council in Worme and Anor. v. Commissioner of Police of Grenada,[xvii] for the purpose of determining whether a law creating the offence of criminal libel was a permissible derogation from the right of freedom of expression under the Grenadian Constitution. In this case, however, it was applied for the purpose of determining whether both requirements of the Grenadian Constitution for impinging laws were satisfied. The first issue to be determined was whether the offence of criminal libel was ‘reasonably required’ for the purpose of protecting the reputations of other persons, and the second was whether the maintenance of that offence on the statute book was ‘reasonably justifiable in a democratic society’. The result of applying the proportionality test was that the law making criminal libel an offence was held to satisfy both these requirements.

[24] In Surratt v. The Attorney General of Trinidad and Tobago[xviii] the constitutionality of the Equal Opportunity Act[xix] was in issue. One of the grounds on which the Act was challenged and held by the Court of Appeal to be unconstitutional, was because of the inconsistency of some of its provisions with some of the fundamental rights and freedoms enshrined in the Trinidad and Tobago Constitution including the right to enjoyment of property and to freedom of thought and expression. This Act had been passed by a simple majority and so Section 13 of the Constitution did not apply. Consequently there was nothing in the constitution to indicate what criteria should be used in order to determine whether the offending sections of the Act should be held to be constitutional notwithstanding their inconsistency with certain of the rights and freedoms guaranteed by the Constitution. As a result there was so to speak no peg on which to hang the proportionality test. That did not deter the Board, however, from applying it in a simplified form.

[25] It was reduced in Baroness Hales’ formulation to two questions viz: (1) did the infringing provisions have a legitimate objective, and (2) were the means used to achieve that objective proportionate to it? Baroness Hales (who delivered the majority judgment) dealt with the said absence of any provision in the Trinidad and Tobago Constitution which sanctioned the abridgment of a fundamental right or freedom by an ordinary Act passed by a simple majority, in the following way:

“It cannot be the case that every Act of Parliament which impinges in any way upon the rights protected in sections 4 and 5 of the Constitution is for that reason alone unconstitutional. Legislation frequently affects rights such as freedom of thought and expression and the enjoyment of property. These are both qualified rights which may be limited either by general legislation or in the particular case, provided that the limitation pursues a legitimate aim and is proportionate to it. It is for Parliament in the first instance to strike the balance between individual rights and the general interest. The courts may on occasion have to decide whether Parliament has achieved the right bala[xx]nce.”[xxi]

[26] I digress to call attention to the rather odd situation which still obtains for most of the Commonwealth Caribbean. It is that there is such a huge distance, both geographically and culturally, between the Parliament which initially strikes the balance between public interest and individual right and the final court which reviews and may alter the balance which the Parliament has struck.

[27] I would like also in the same context to quote a passage from the minority judgment delivered by Lord Bingham in the same case of Surratt. He said:

“To the extent that the answer to the present problem is doubtful, weight should be given to the judgment of the Trinidad and Tobago courts. A judge sitting in a local constitutional environment, in which he has grown up and with which he is familiar, is likely to have a surer sense of what falls within the purview of the Constitution and what falls beyond than a court sitting many miles away. For this reason alone, in the absence of manifest error, the Board should be slow to disturb the unanimous conclusion of the local courts on a question of this kind, involving as it does a question of judgment and degree.”[xxii]

[28] Let me make it clear that the issue to which these remarks of Lord Bingham were directed is a totally different issue to the one with which I have been dealing but I think that his words of the senior Law Lord have a validity which extends far beyond the particular issue with which he had been dealing.

[29] It is to be noted that in the Court of Appeal in Surratt,[xxiii] Archie JA (as he then was) considered that because the Act had been passed by a simple majority and section 13 of the Constitution therefore did not apply the question of whether Parliament had struck the right balance in the Act between the public interest in eliminating discrimination and the protection of the rights and freedoms of the individual, did not and could not arise. This view was rejected, at least impliedly, by the Privy Council.

[30] To complete the picture, I would point out that what I have referred to as the proportionality test was applied by Jamadar J in Northern Construction Ltd. v. Attorney General[xxiv] for the purpose of determining whether certain provisions in the Proceeds of Crime Act[xxv] an Act which had been passed by a three-fifths majority and declared its own inconsistency with the Chapter on Fundamental Human Rights and Freedoms was reasonably justifiable in a society which had a proper respect for the rights and freedoms of the individual. The Court of Appeal while differing from the trial judge’s conclusion, found no fault with his use of the proportionality test.

[31] The pervasiveness which the proportionality test has achieved in our constitutional law prompts me to ask one or two questions. If the test applies to Acts of the Trinidad and Tobago Parliament whether or not they have been passed by an enhanced majority, what added protection is given to an Act which is passed by a three-fifths majority and declares its inconsistency with sections 4 and 5 of the Constitution? If the validity of every Act which infringes a fundamental right or freedom is to be determined by the same simple test of whether: (a) it has a legitimate objective and (b) it uses means to secure that objective which are proportionate to it, then what purpose is served by the lengthy statements of permitted limitations of, and derogations from, constitutionally protected rights and freedoms that are to be found in all of our Constitutions except one? How do we reconcile the existence of two requirements for an impinging law to be valid as provided for in the Constitutions of the OECS States in relation to which the burden of proof is on different parties, with the application of a single proportionality test?

[32] I raise these questions not because of any dissatisfaction with the proportionality test per se but out of a concern whether an imported test is supplanting rather than supplementing, the tests which have been expressly ordained by our own written Constitutions.


[33] I have referred to the cases of Fraser v. JLSC (2008) 73 WIR 175 and Inniss v. The Attorney General (2009) 2LRC 546 in connection with the award of vindicatory damages. These two cases are important, for another reason, in that they serve to reinforce the independence of the magistracy.

[34] In both these cases the issue was whether termination by the State of a fixed term contract of employment of a magistrate before the natural expiration of the term, was unconstitutional, when the termination was effected in accordance with a provision for termination contained in the contract, but not in accordance with the procedure for termination prescribed by the Constitution.

[35] The facts of these cases were very similar. In Fraser, the claimant was employed under contract for a period of one year. The contract was terminable before its expiration by the Government giving three months’ notice or paying one month’s salary in lieu of notice. There was an allegation of corruption made against the claimant. The complaint was investigated by a Judge appointed for that purpose by the Judicial and Legal Service Commission (“the Commission”). Arising out of the Judge’s report and at the suggestion of the Commission, a letter was sent to the claimant by the Permanent Secretary in the Ministry of Public Service terminating the claimant’s employment. Under section 91(3) of the Constitution of St. Lucia the power to exercise disciplinary control and to remove magistrates from office, is vested in the Commission.

[36] The claimant having challenged his termination by constitutional motion, the trial Judge held that there had been a contravention of the Constitution by both the Commission and the Government and awarded damages against them. The Court of Appeal allowing the respondent’s appeal, held that there had been no constitutional breach but only a breach of contract and on that basis substituted a much smaller award.

[37] The Privy Council restored the trial Judge’s judgment holding that when there was a conflict between a constitutional provision protecting the independence of the Judiciary and the terms of a contract entered into with a member of that protected class, the constitutional provision must prevail.

[38] The facts of Inniss were very similar and the case followed a similar course. The claimant had been appointed Registrar of the High Court of St. Kitts and Nevis and additional magistrate. Under section 83 (3) of the St. Kitts and Nevis Constitution the power to exercise disciplinary control over, and to remove, someone who held the offices that the claimant held, was vested in the Governor General acting in accordance with the recommendation of the Judicial and Legal Service Commission. The claimant was employed under a contract with the Governor General for a period of two years but subject to termination according to its terms by three months’ notice or one month’s salary in lieu of notice. In this case a Permanent Secretary from the Establishment Division wrote to the claimant purporting to terminate her employment. The trial Judge held that the letter was a contravention of section 83 (3). Here too the Court of Appeal reversed the trial Judge’s decision and held that there was no breach of a constitutional right, but only a breach of contract. Before the appeal was heard by the Privy Council, the Privy Council delivered its judgment in Fraser and therefore the respondents did not attempt to support the Court of Appeal’s judgment. The Privy Council following Fraser, held that contractual right must give way to the constitutional protection afforded to the lower judiciary by section 83.

[39] It is possible for a person to contract out of the protection afforded him by the human rights provisions in a Constitution. In fact the statement of several of the rights in Commonwealth Caribbean constitutions begins with the phrase ‘Except with his own consent’. The importance of Fraser and Inniss is that they demonstrate that where there is a public interest in the maintenance of the protection afforded by the Constitution, as there is in the case of those provisions which serve to preserve the independence of the judiciary, the person protected cannot by contract surrender that protection. He cannot effectively grant permission to anyone to depart from the regime which the Constitution has in the public interest ordained for his protection. These two cases are crucial to the maintenance of the security of tenure of magistrates which is one of the pillars on which their independence is founded.

[i] [2006] 1 AC 328

[ii] [1979] 43 WIR 108

[iii] [1997] 52 WIR 501

[iv] [1997] 52 WIR 501 at 505

[v] Supra at 512

[vi] [2008] 73 WIR 175

[vii] [2008] 73 WIR 187

[viii] [2009] UK PC 11

[ix] (1980) 32 W.I.R. 395

[x] (1985) 34 W.I.R. 387

[xi] [2004] 64 WIR 402 at 410

[xii] (1990) 2 AC 751

[xiii] (unreported) Civil Appeal No. 16 of 2004

[xiv] [1999] 1 AC 69

[xv] [1996] 1 LRC 64

[xvi] Supra at 75

[xvii] [2004] 63 WIR 79

[xviii] [2008] 1AC 655

[xix] No. 69 of 2000

[xxi] Supra at paragraph [58]

[xxii] Supra at paragraph [28]

[xxiii] Civil Appeal No. 64 of 2004 (unreported)

[xxiv] HCA No.733 of 2002

[xxv] No. 55 of 2000