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TEN YEARS OF ADJUDICATION IN THE CARIBBEAN COURT OF

JUSTICE AND REFLECTIONS ON A DECADE OF CARIBBEAN

JURISPRUDENCE

1. PROLOGUE

1.1 The countries of the Caribbean suffered the brutality of slavery for three and a

half centuries. Several of the English-speaking territories of the Region endured

imperial domination for three centuries. In this period the supervisory authority of the

Crown was manifested by the role played by imperial institutions of which the Privy

Council was one.

1.2 Appeals to the Crown on a variety of matters, including legal disputes by virtue

of the royal prerogative, were part of the imperial regime. In England, while original

civil jurisdiction was assumed by the Court of Chancery, criminal matters were

relegated to the Star Chamber. The Privy Council became the supervisory

administrative authority and the final appellate court for what was termed the

plantations, primarily in the Western Hemisphere.1

1.3 In 1675 the Crown decided to exert strict control over the colonial

administration and appointed a Special Committee of the Privy Council to assume the

functions of the Council for Trade and Plantations. This Committee proceeded to

interfere with the legislative functions of the colonial legislatures. The principles of

self-determination and incipient doctrine of constitutionalism manifested itself in the

American revolutionary experience so that in 1763 Patrick Henry challenged the right

of the Privy Council to disallow the Virginia Two Penny Act.2

1.4 Prior to 1696 appeals to the King in Council were referred to the Council for

Trade and Plantations and later the judicial functions of this Council were transferred

to a Special Committee called the Committee For Appeals, comprising the Lord

Chancellor, former Lord Chancellors and persons who had held high judicial offices.

1.5 Almost simultaneously with the abolition of slavery, a more regulated system

was established and a Special Judicial Committee constituted.3 For the first time a

legal requirement was imposed that all members of this Special Committee should

possess legal qualifications and judicial status. The traditional informality of the

Privy Council was diminished by the provisions of the Judicial Committee Act of

1 Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (1966), p. 433. 2 Bernard Schwartz, History of the Supreme Court (1993) 3 Judicial Committee Act, 1833 (3&4W4, c. 4)

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18444 which required Her Majesty to provide by Order in Council for the

administration of appeals to Her Majesty in Council while retaining the extraordinary

power to grant special leave to appeal in circumstances not provided for by the

constitutional or statutory instruments of the colonial territories.

1.6 In its operations during the dark days of slavery and crown colony governments

in the Region, the Privy Council’s predecessor, the Council for Trade and Plantations,

had upheld the legislative autonomy of the legislatures of Barbados and Jamaica,

which resisted all efforts to introduce measures for the amelioration of the parlous

condition of the black majorities.

1.7 From the inception the Royal Proclamation relating to the future constitutional

framework for Jamaica had stated:

“all the children of our natural born subjects of England to be born in

Jamaica, shall from their respective births be reputed to be, and shall be,

free denizens of England, and shall have the same privileges to all

intents and purposes as our free-born subjects of England.”

“Right reason, which is the common law of England, is esteemed and

of force amongst us, together with Magna Charta and the ancient

statutes of England, so far as they are practicable.”5

Nevertheless, the Privy Council repeatedly held that the child of a male white English

settler and a black female slave had the status of a slave and could not be treated as

other than a new item of property.6

1.8 It is therefore surprising that against this historical background, when the

former British colonies of the Caribbean emerged from their colonial status they

elected to retain the Privy Council as their final appellate court. While it is true that in

the last century, the Privy Council in its reformed judicial manifestation has provided

high quality judicial service to the Caribbean members of the Commonwealth, it is

remarkable that unlike the vast majority of former colonies, having less historical

justification, we have to a large extent insisted on clinging to its overreaching

jurisdiction.

4 7&8V.C.69 5 See L. G. Barnett, The Constitutional Law of Jamaica (1977), p. 4. 6 Edwin Watkins, A History of the Legal System of Jamaica 1661-1900 (Ph.D., Laws, University of

London)(1968), pp. 179-182.

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1.9 It is now 800 years since the proclamation of Magna Charta, 350 years since its

adoption in the Caribbean, 200 years after the abolition of slavery, 150 years after the

Morant Bay Rebellion, 100 years after The Daily Gleaner called for the establishment

of a regional final court of appeal, over 50 years since Independence and 40 years

since the Jamaican Delegation to a CARICOM Heads of Government Conference

tabled a proposal for the establishment of a regional final Court of Appeal. In

February 2001, 10 Caribbean States signed the Agreement for the establishment of the

Caribbean Court of Justice. They all declared in the Preamble to that Agreement that

they were:

“CONVINCED that the Caribbean Court of Justice, (hereinafter referred

to as “the Court”), will have a determinative role in the further

development of Caribbean jurisprudence through the judicial process;”

1.10 There is no rational reason for the repudiation of that declaration. There is now

10 years of evidence in the judgments of the Court as to the quality of its

jurisprudence. I invite you now to consider an essential part of that evidence relating

to the exercise of its appellate jurisdiction.

2. ACCESS TO APPELLATE JUSTICE

2.1 To ordinary citizens, the existence of a third tier jurisdiction assumes practical

value if it is accessible. This means not only that there is a legal avenue by which

they are able to go beyond the first level of appeal but it is physically and financially

within their reach. Although the discussions on adopting the appellate jurisdiction of

the Privy Council have focussed on this latter aspect, where the evidence in favour of

the CCJ is clear and irrefutable, there is another important aspect and that is whether

the Court will not only be legally able and willing to entertain their challenges but

will also provide them with a real opportunity to have their matters reconsidered.

2.2 The provisions of Article XXV of the Constituent Agreement with respect to the

appellate jurisdiction of the Court as well as the statutory provisions of the States

which have adopted its appellate jurisdiction follow closely on the pattern of the pre-

existing provisions for appeals to the Privy Council, with additional transitional

arrangements. In Barbados Rediffusion Service Ltd. v. Mirchandani et al [2005] CCJ

1(AJ), which had the distinction of being the first appeal to be taken to the CCJ, the

Court stated that in shaping the principles by which it would be guided in determining

whether to grant or refuse special leave to appeal it would:

“pay attention to the practice adopted by the Judicial Committee, but we

will not feel bound to adhere strictly to it. We will also pay attention to

the practice and principles adopted by final courts of appeal in other

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Commonwealth countries, but we will develop our own jurisprudence in

this area incrementally on an “as needed” basis.” [Para. 35]

2.3 On the threshold question of jurisdiction, the CCJ stated:

“One should therefore avoid a construction of the new legislation

which would lead to the result that a party is deprived of a right to make

or pursue an application for leave to appeal to the Judicial Committee

without at the same time acquiring a corresponding right to apply for

leave to appeal to this Court. It must be assumed that in all those cases

in which the effect of the legislation was to abrogate an existing right of

appeal to the Judicial Committee whether that right was qualified or

unqualified, it intended to confer a corresponding right of appeal,

similarly qualified or unqualified, to the Caribbean Court of Justice.

Otherwise persons would be penalized under a doubtful law.” [Para. 25]

2.3 This was essentially a procedural appeal in which the background facts

concerned the striking out of the applicant’s defence for disobedience of an “unless

order” and there was an issue as to whether or not he had complied. The CCJ stated

that:

“It has been said that the Judicial Committee will grant special leave to

appeal if there has been either an “egregious” error of law or a

substantial miscarriage of justice. In this case there is no egregious error

of law involved, but the question does arise whether in the

circumstances of this case there exists a real risk that allowing the order

barring the applicant from defending this action to stand, without being

exposed to further scrutiny by this Court, will result in a serious

miscarriage of justice. The sanction imposed on the applicant is a drastic

one as it denies it the opportunity to defend the action on its merits. The

applicant has always manifested a serious intention to contest liability in

this action and there is at least the possibility that if liability is

established, the damages in this action will be substantial.” [Para. 43]

2.4 The CCJ expressed its conclusion as follows:

“We are certainly not in a position to hold, and do not hold, that the

sanction imposed was wrongly imposed. We have, however, come to

the conclusion that in the circumstances of this case the possibility that

it may have been wrongly or unfairly imposed is significant enough to

warrant the issue being fully and finally ventilated before this Court.”

[Para. 44]

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The Court accordingly granted special leave to appeal.

2.5 In Brent Griffith v. Guyana Revenue Authority and the Attorney-General, CCJ

App. No. 1 of 2006, Nelson, J.A., in giving the judgment of the CCJ, stated:

“But this court may also in the exercise of its inherent jurisdiction grant

special leave when the Court of Appeal has wrongly refused leave

(either in an as-of-right case or one where the conditions for leave under

section 7 are satisfied) or has granted leave subject to conditions which

it had no power to impose. The same inherent jurisdiction is in our view

also exercisable when no application for leave has been made to the

Court of Appeal.” [Para. 23]

2.6 In Elizabeth Ross v. Coreen Sinclair [2008] CCJ 4 (AJ), the issues surrounded

the purchase of a condominium by a blind and penurious person. The Court of

Appeal of Guyana had refused to grant her leave to appeal to the CCJ as a poor person

so as to exempt her from the payment of security for costs. She had lost the benefit of

a conditional leave to appeal granted her by the Court of Appeal of Guyana by reason

of her failure to pay the security for costs ordered. The CCJ held that it had an

independent power to grant special leave to appeal and taking into account the

circumstances including the difficult legal questions raised by the appeal decided to

grant her leave to appeal and added:

“We are also satisfied that the applicant is genuinely unable to provide

security for costs and, therefore, if required to do so as a condition of

her appeal proceeding, her right of appeal will have been rendered

nugatory. We appreciate that the respondent is similarly circumstanced

and in all probability cannot afford to pay for legal representation at the

hearing of this appeal. Fortunately, both parties have had the benefit of

the services of competent and public-spirited attorneys who have no

doubt provided them on a pro bono basis. Hopefully, their generosity

will not be exhausted before the final determination of this matter.”

[Para. 25]

2.7 In Mohammed Yasseen v. The Attorney-General of Guyana [2008] CCJ3 (A.J.)

the CCJ had to consider whether the appellant had a right of appeal under the

Caribbean Court of Justice Act which conferred jurisdiction on the Court. He had

been dismissed from the Guyana Police Force without being given an opportunity to

be heard. He instituted proceedings in the High Court claiming damages for wrongful

dismissal and a declaration that his removal from the Force was unconstitutional and

of no effect. The trial Judge found that he was unlawfully dismissed and awarded him

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damages for wrongful dismissal but did not allow him to amend his claim to include

compensation and benefits appropriate to someone who had been compulsorily

retired. On appeal to the Court of Appeal he contended that since his dismissal was

null and void he was still in effect a member of the Force and entitled to his salary up

to the date of his retirement and his pension thereafter. The Court of Appeal upheld

this judgment of the trial Judge and held that he was right to take into account the

failure of the appellant to mitigate his losses. The Court of Appeal found that the

Statement of Claim “could not have transformed a private law action for unlawful

dismissal to a constitutional matter as what was alleged was not an infringement of

any fundamental right but a breach of natural justice.”

2.8 On appeal to the CCJ, the appellant claimed that the proceedings were concerned

with redress for contravention of the provisions of the Constitution relating to the

protection of fundamental rights.

2.9 The CCJ held that the claim had not been presented as a claim for breach of a

fundamental right and stated:

“The basic contention here was that his termination was wrongful

because of the Police Commissioner’s disregard of the principles of

natural justice. The right to institute the action on that ground existed

independently of the Constitution and did not depend on, and was not

concerned with, establishing the contravention of any provision of the

Constitution for the protection of fundamental rights.” [Para. 13]

2.10 The CCJ then stated:

“Even if the appellant were to allege - and we must not necessarily be

taken as supporting either of these propositions - that his right to be

heard constituted a fundamental right protected by the Constitution or

that his job was property the enjoyment of which was protected by the

Constitution, there is no principle of constitutional law which would

have required the Court, in assessing compensation due to him for

breach of either or both of those assumed rights, to treat his employment

as notionally continuing until his retirement age and to ignore his

capacity to take up alternative employment and earn an income from it.”

[Para. 14]

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2.11 And then added:

“Put another way, there is no basis in principle or in decided cases for

treating the policy which the courts have traditionally followed of not

ordering specific performance of contracts of service as inapplicable to

a contract of service which has been terminated in breach of a

fundamental right protected by the Constitution.” [Para. 14]

and concluded:

“In the circumstances there is nothing in this case that turns on it being

treated as a claim under any of the relevant constitutional provisions.”

[Para. 15]

The Court added:

“In the absence of any technical rule requiring the Court to regard the

employment of the appellant as being in existence until he attained the

retirement age, there is no possible basis on which we could have

treated the compensation he has actually been awarded as unfair or

inadequate.” [Para. 16]

2.12 Thus, the appeal was struck out. While clearly the Appellant had failed to plead

the constitutional breach, the CCJ regrettably appeared to have repeated the rather

restrictive formulation of the principle governing the approach to the vindication of

fundamental rights which had been exemplified in Khemragh Harrikissoon v. Att-

Gen7 . and Jaroo v. Att-Gen8. However this obiter dictum is not truly representative of

the CCJ’s approach to claims for constitutional redress in other cases.

2.13 It is to be noted that in Nankissoon Boodram v. Att-Gen (1994) 47 W.I.R. 459,

the Court of Appeal of Trinidad and Tobago had distinguished Harrikissoon on the

issue of whether to resort to constitutional claim for fundamental rights abuse was

fatal because a common law remedy exists. Sharma, J.A. at page 483 stated:

“two things are very clear. Firstly, it is the right of every citizen to have

unimpeded access to the courts to vindicate his constitutional rights and,

secondly, the courts under their inherent jurisdiction and section 14(2)

of the Constitution have the right to exercise their coercive powers. To

7 (1979) 32 W.I.R.348 8 (2002) 59 W.I.R.519

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these I might add a third, that the right to seek constitutional redress is

without prejudice to any other action with respect to the same matter

which is lawfully available to him. That this is so, is made clear by

section 14 of the Constitution itself.”

2.14 In Seepersad v. AG (2012) 80 W.I.R.463, the Privy Council also adopted the

more liberal approach and distinguished Harrikisoon and Jaroo by holding that:

“The availability of the remedy of judicial review did not render the

present proceedings an abuse of process or otherwise unsustainable.

Whilst the right to apply to the High Court under s. 6 of the Constitution

for redress when any human right or fundamental freedom was or was

likely to be contravened was an important safeguard of those rights and

freedoms, its value would be diminished if it was allowed to be misused

as a general substitute for the normal procedures for invoking judicial

control of administrative action. In the instant case, the issues that the

appellants raised were truly issues of a constitutional nature.”

2.15 The restrictive dictum in Mohammed Yassen was obiter and probably

encouraged by the weakness of the claim to constitutional relief and fortunately does

not represent the overall approach of the CCJ to the availability of access to the Court

for the vindication of human rights abuses.

2.16 In Singh & Singh v. Att-Gen of Guyana 2012 CCJ 2(AJ), the Court answered

the question as to how it should deal with ex parte applications for an order nisi for a

certiorari writ to be issued, taking account of the nature of such an application and the

nature of the writ against the background of the Guyanese Constitution which as the

CCJ pointed out in its Preamble emphasises the importance of a system of governance

that promotes, inter alia, fundamental human rights and the rule of law. The CCJ

stated that the main purpose of certiorari, indeed, is to quash unlawful conduct of

public bodies which can very well cause interference with fundamental rights which

include constitutional rights to property in the Constitution and freedom of

association. Rules of Court should thus be purposively construed so as to foster the

fundamentals of the Constitution. The Applicants having been denied their right of

appeal below, the CCJ stated:

“In these very exceptional circumstances this Court considers that no court could

properly refuse an application for an extension of time for appealing that 29

December order. Order II, rule 3, paragraphs (4) to (7) of the Court of Appeal

Rules enable the Court of Appeal to grant extensions of time for appeals and under

s 3 of the Caribbean Court of Justice Act No 16 of 2004 giving effect to Article

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XXV.6 of The Agreement Establishing the CCJ, this Court has all the powers of

the Court of Appeal.” (para. 41)

2.17 In Knox v. Deane [2012] CCJ 4(AJ), Orders for costs had been made against

Mrs. Knox and had not been paid and the Respondents commenced garnishee

proceedings over her share of Kingsland Estate’s dividends. On the issue of security

for costs, the CCJ stated that the awards of security for costs must, in the final

analysis, be “just” in all the circumstances. In this respect the courts are anxious to

preserve access to justice for persons resident abroad or impecunious who are brought

before the courts to defend litigation and are desirous of continuing their defence, so

to speak, by way of appeal. More especially is this so because both at first instance

and on appeal nowadays foreignness and poverty are no longer per se automatic

grounds for ordering security for costs. [Para. 40] Nelson, J., CCJ said, both the

single Justice of Appeal and the Court of Appeal should have in their written reasons:

(i) identified “the special circumstances” justifying an award of security

for costs on appeal;

(ii) taken into account the lack of a skeleton bill of costs with a realistic

estimate of the costs of the appeal as opposed to an unsubstantiated or

wholly erroneous estimate in excess of the maximum permitted costs in

enforcement proceedings;

(iii) considered the ability of the Appellant to pay the costs of the

appeal not only from her resources but from sources supporting her in

the litigation rather than her alleged impecuniosity alone; and

(iv) assessed whether it was just to order security for costs in all

the circumstances against the Appellant/Defendant, whether foreign or

impecunious or both, who was brought into court and wished to

continue her defence by way of appeal. [Para. 32]

2.18 In Lashley & Campagne v. Singh (2014) CCJ 3 (AJ), the applicants applied to

the CCJ for special leave to appeal on the grounds that:

1. that the First Applicant’s constitutional right to be present at

his trial was violated;

2. that due to the incompetence of counsel, the Applicants

received an unfair trial;

3. that the treatment of evidence during trial was prejudicial to

the Applicants’ case; and

4. that the sentences were excessive.

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The CCJ held that:

“The most cogent and compelling ground for granting special leave

to appeal was the claim by the Applicants that the ineffective

conduct of their trial by counsel rendered the trial unfair and the

conviction unsafe. Among other things it was argued that Counsel

did not at the trial put specific statements made by the Applicants to

the Prosecution witnesses. The Court notes that the Magistrate

herself had stated in her reasons for decision that the unsworn

statements by the Applicants were at variance with the questions put

to the prosecution witnesses.”

2.19 In Systems Sales Ltd. v. Browne-Oxley [2014] CCJ 16(AJ) the CCJ affirmed that

the standard it would apply in granting special leave to appeal is that the applicant

should show that the proposed appeal has a realistic chance of success or if as a matter

of public importance a definitive reasoned judgment on the issue is required from the

Court.

2.20 The reality of the accessibility of appellate justice before the CCJ is illustrated

by its approach to concurrent findings of fact in the Courts below. In Lachana v.

Arjune [2008] CCJ 12(AJ) stated:

“[11] Counsel for the Arjunes referred us to the well known case of

Devi v Roy where the Privy Council “codified” their (utter) reluctance to

review the evidence for the third time where there are concurrent

findings of two courts on a pure question of fact. This decision was the

culmination of a long line of cases in which the Privy Council

developed a rather rigid practice of non-intervention with the facts of

the case including those facts that were mere inferences from the

primary facts. Even when there was a dissentient in the appellate court

or where different reasons were given by the judges in arriving at the

same findings of fact, the Privy Council was loath to interfere. It would

do so in case of “some miscarriage of justice or violation of some

principle of law or procedure.” Although the Privy Council stated in

Devi v Roy, and has repeatedly said so in later cases, that this practice is

not a “cast -iron one”, it would seem that its approach has been more

rigid than the practice of other final courts in the Commonwealth. We

would in this context expressly refer to recent statements in the High

Court of Australia which clearly show a tendency toward more

flexibility.

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[12] We do not think that it is proper for us to adopt wholesale the

practice followed by the Privy Council if only because the position of

our Court is quite different from that of the Privy Council. When their

Lordships decided Devi v Roy they were at the judicial apex of an

empire that spanned all five Continents. In a way they still are, although

the empire has dwindled substantially. The point is that their Lordships

are both geographically and culturally far removed from the countries

that still retain the Privy Council as their final appellate court. They are,

quite understandably, unfamiliar with local situations and customs, and

therefore have to tread very carefully and cautiously with the facts as

they emerge from the findings of the local courts. The disadvantages of

that situation have become clear with some regularity. To take a recent

example, in Panday v Gordon their Lordships expressly opted to defer

to the findings of the lower courts even though it meant depriving the

appellant of a fresh look at the factual substratum of the case. The

difference with our Court is obvious. We are a regional Court and thus

much closer to home as it were. Our closeness to the region and our

greater familiarity with its social and cultural dimensions make it easier

for us to descend into the facts of the case, especially where the facts do

not turn on the credibility of the witnesses or where they are the result

of inferences from primary facts.

[13] Furthermore, it would seem to us that a policy of rigid judicial

restraint with regard to concurrent findings of fact might be much more

appropriate in appeals with special leave where a final court has a broad

discretion whether to hear a case or not than in appeals as of right. We

note, however, that the Privy Council has maintained its practice even in

those appeals (see Benoit Leriche v Leon Cherry).

[14] It is against this background that we intend to develop our own

practice, for the time being on a case by case basis. As this is an appeal

as of right and only deals with factual findings we will, for now, deal

with the issues before us as fully as necessary.”

2.21 On the basis of these rulings, it can be stated with some confidence that the CCJ

will provide all reasonable means of access to its appellate jurisdiction and will be

particularly concerned to ensure that onerous financial obstruction is not placed in the

way of poor persons who have genuine grounds for wishing to access its jurisdiction.

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3. PROTECTION OF HUMAN RIGHTS

3.1 The second area in which average citizens are deeply concerned is the need for

confidence that the final appellate court will give effective protection to their

constitutional guarantees of fundamental rights and freedoms. Arguably, the best test

of this is where the person who claims the protection of the rights is morally

undeserving or is despised by the society. Not surprisingly, the first test of the

Court’s reliability in this area is a capital punishment case.

3.2 The death penalty has for many years been arguably the most challenging issue

of human rights law in the Caribbean. Judicial executions by their very nature create

strong philosophical and ethical reactions as well as impose immense burdens on

judicial reasoning. The Constitution-makers of several countries implicitly accepted

that the death penalty is in conflict with fundamental principles of human rights and

their own protestations of support for international conventions which proceed on that

basis. Accordingly, in several Constitutions a specific savings clause was introduced

to safeguard the death penalty against judicial condemnation. In the discussions about

the abolition of appeals to the Privy Council and the adoption of the appellate

jurisdiction of the CCJ some politicians even gave as their reason for supporting this

move, the presumed tendency of the Privy Council to circumscribe the use of the

death penalty.

3.3 It was therefore a matter of immense interest to observe how this issue would be

addressed by the CCJ. That opportunity arose in 2006 in the case of Attorney-

General of Barbados et al v. Joseph & Boyce [2006] CCJ 3 (AJ). The facts as

summarised by the Court are that the respondents and two other men were charged

jointly with the murder of a young man who was beaten to death. All four accused

were given the option of pleading guilty to the lesser charge of manslaughter. The

other two accused accepted this offer and were sentenced to 12 years imprisonment

for manslaughter. The respondents, however, declined the offer and stood trial for

murder. They were convicted and sentenced to death. Their appeals to the Court of

Appeal and the Privy Council were dismissed.

3.4 The respondents then petitioned the Inter-American Commission for Human

Rights, alleging violations by the State of Barbados of its obligations under the

American Convention on Human Rights. Shortly after the filing of these petitions,

however, the Barbados Privy Council confirmed its previous decision not to

recommend commutation of their sentences. As a result, death warrants were read to

the respondents and they instituted these proceedings claiming that the threatened

execution was in contravention of their constitutional rights.

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3.5 Counsel for the Crown in addressing the CCJ conceded that he could not ask for

the re-imposition of the death sentences as more than five years had run since these

sentences were imposed so that to carry them out then would be in breach of the

decision in Pratt and Morgan. The CCJ stated that:

“This concession was in our view rightly made. Over five years had

elapsed since their conviction and sentence and the Crown made no

attempt to challenge the applicability to them of the time-limit for

carrying out the death penalty laid down in Pratt and Morgan.”

[Para. 15]

3.6 The CCJ was concerned with three broad issues:

“1. Whether the exercise by the Governor-General of his powers

under section 78 of the Constitution of Barbados is justiciable and if

so, to what extent.

2. In what manner, if at all, may unincorporated international human

rights treaties which give a right of access to international tribunals

affect the rights and status of a person convicted of murder and

sentenced to the mandatory punishment of death by hanging.

3. Whether section 24 of the Constitution authorises the Court to

commute a death sentence and, if so, whether in all the

circumstances it was appropriate for the Court of Appeal to take into

account the matters that it did in deciding whether to commute or

give other relief.” [Para. 11]

3.7 President de la Bastide and Justice Saunders gave a joint judgment and the other

five judges (Justices Nelson, Pollard, Bernard, Wit and Hayton gave separate

judgments but they were all unanimous in the ultimate and essential answers, as

indicated by the Summary of the Judgments:

“It is the unanimous view of the Court that the exercise of the

prerogative of mercy is reviewable notwithstanding section 77(4) of the

Constitution which purports on the face of it to preclude the court from

inquiring whether the BPC's functions under section 78 have been

properly performed. The grounds for and review are not exhaustively

catalogued in the judgments, but they are held to include procedural

unfairness.”

“the go-ahead given by the BPC for the execution of the respondents

shortly after they had initiated proceedings before the Inter-American

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Commission for Human Rights was a contravention of the right to the

protection of the law.”

3.8 Referring to the speculation which had accompanied the establishment of the

Court with respect to the approach it would take in death penalty cases, Justices de la

Bastide and Saunders began by “outlining some basic features of the approach it

would adopt in addressing these issues” and declared:

“The main purpose in establishing this court is to promote the

development of a Caribbean jurisprudence, a goal which Caribbean

courts are best equipped to pursue. In the promotion of such a

jurisprudence, we shall naturally consider very carefully and

respectfully the opinions of the final courts of other Commonwealth

countries and particularly, the judgments of the JCPC which determine

the law for those Caribbean states that accept the Judicial Committee as

their final appellate court. In this connection we accept that decisions

made by the JCPC while it was still the final Court of Appeal for

Barbados, in appeals from other Caribbean countries, were binding in

Barbados in the absence of any material difference between the written

law of the respective countries from which the appeals came and the

written law of Barbados. Furthermore, they continue to be binding in

Barbados, notwithstanding the replacement of the JCPC, until and

unless they are overruled by this court. Accordingly we reject the

submission of counsel for the appellants that such decisions were and

are not binding in Barbados.” [Para. 18]

3.9 Justices de la Bastide and Saunders further remarked:

“We recognise that the death penalty is a constitutionally sanctioned

punishment for murder and falls within internationally accepted conduct

on the part of civilised States. The death penalty, however, should not

be carried out without scrupulous care being taken to ensure that there is

procedural propriety and that in the process fundamental human rights

are not violated. Death is a punishment which is irrevocable. Amidst

deep and continuing controversy over the death penalty, it must be

acknowledged that several court decisions in the Caribbean over the last

two or three decades have done much to humanise the law and to

improve the administration of justice in this area.” [Para. 19]

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3.10 They declared with respect to the judicial review of the exercise of the power of

commutation:

“We agree with those who regard the power to confirm or commute a

death sentence, particularly a mandatory one, as far too important to

permit those in whom it is vested freedom to exercise that power

without any possibility of judicial review even if they commit breaches

of basic rules of procedural fairness. Rooted though they be in language

and literature, conceptual differences between mercy and justice cannot

justify denying to a man under sentence of death, an enforceable right to

have the decision whether he is to live or die arrived at by a procedure

which is fair.” [Para. 39]

3.11 The Court held very importantly that it has an implied or inherent power to give

redress where it finds that there was a breach of the guarantee of due process. [para.

41]

3.12 On the relevance of international human rights conventions, which have been

acceded to but not incorporated into domestic law, and the approach taken by the

JCPC in Pratt & Morgan, the CCJ:

“We respectfully endorse without reservation the proposition that the

practice of keeping persons on death row for inordinate periods of time,

is unacceptable and infringes constitutional provisions that guarantee

humane treatment. In this respect, Pratt has served as an important

reminder to all that the Constitution affords even to persons under

sentence of death, rights that must be respected and that the true

measure of the value of those rights is not just how well they serve the

law-abiding section of the community, but also, how they are applied to

those for whom society feels little or no sympathy.”

3.13 The Court held that procedural fairness is an elementary principle and therefore,

a condemned man has a constitutional right to procedural fairness as part of his right

to protection of the law. Correspondingly, the courts have an inherent jurisdiction, and

a duty, to grant an appropriate remedy for any breach of that right. Justices de la

Bastide and Saunders held that due process related only to domestic and not

international law (not following Thomas v. Baptiste [1999] 3 WLR 249(262-3) and

Lewis & Others v. The Attorney-General [2001] 2 A.C. 50. They however embraced

the opportunity to review the conflicting case law on the application of the principle

of legitimate expectation in this context and pointed out:

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“The frequency and force of the dissents and the high incidence of

reversals by the JCPC of its own recent decisions demonstrate very

forcefully the fact that this branch of the law is in an unsettled state

and is still evolving. Novel and difficult questions of law are

involved here. Judges all over the world are struggling to give form

and coherence to ideas that only began to engage their attention in

fairly recent times. In the judgments examined above there is a

divergence of opinion and approach, not only as between different

courts but as between judges of the same court. The range is from

the very assertive and activist positions of the Indian Supreme Court

to the more conservative approach of the House of Lords.” [Para.

103]

3.14 The judges stated with respect to the widening human rights jurisprudence that:

“Citizens are now at liberty to press for the observance of these

rights at both levels. At the domestic level, the jurisprudence of

international bodies is fully considered and applied. In determining

the content of a municipal right, domestic courts may consider the

judgments of international bodies. Likewise, on the international

plane, the judgments of domestic courts assist in informing the

manner in which international law is interpreted and applied. There

is therefore a distinct, irreversible tendency towards confluence of

domestic and international jurisprudence.” [Para. 106]

3.15 They concluded that, in giving the advice to proceed with the appellant’s

execution:

“the BPC defeated the legitimate expectation of the respondents and

deprived itself of any opportunity of considering the Commission’s

report or if the matter was referred to the Inter-American Court, that

Court’s judgment. The reading of the death warrants on the 15th

September 2004 constituted an infringement of the respondents’

right to the protection of the law.” [Para. 128]

3.16 On the approach that should be taken in future by the BPC the CCJ provided

some valuable guidelines, which we will not here examine but which are predicated

on the principle that –

“Moreover, the role of the BPC in a mandatory death penalty regime

is critical to the individualising of the sentence, an essential feature

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of any civilised justice system. We have seen from time to time in

relation to a refusal to exercise the prerogative of mercy in favour of

a condemned man, the expression that one is “allowing the law to

take its course”. Somehow, mercy is in some quarters perceived as a

deviation from the normal course of the law. This is a most

unfortunate way of viewing the prerogative of mercy, especially in a

mandatory death penalty regime. Mercy and justice are not mutually

exclusive concepts and the “course” of the law includes the

principled intervention of the BPC.” [Para. 140]

3.17 The CCJ held that the Barbados Court of Appeal was bound on the latter issue

to follow the decisions of the Privy Council in Thomas v. Baptiste and in Lewis v. The

Attorney-General of Jamaica which established that the State is under a duty to await

the outcome of the process before human rights bodies, at least for a reasonable

period. Asserting its independence the CCJ in its Summary of the Judgments stated:

“This Court unlike the Court of Appeal, is free to depart from those

decisions, and while we agree with the result produced in those

cases, we do not agree with the reasoning by which that result was

reached.”

3.18 Justice Nelson agreed with Justices de la Bastide and Saunders that the decision

of the BPC in clemency cases are reviewable for errors of law such as alleged

breaches of the Constitution, procedural unfairness [para. 23]. Nelson J.A. also held

that these decisions are reviewable on grounds of illegality, irrationality, procedural

impropriety and proportionality [para. 24]. He concluded that legitimate expectation

constituted an exception to the rule that international law and municipal law travel

along distinct, non-tangential paths [para. 28]. Nelson, J.A. concluded that:

“a breach of the right to the protection of the law occurred when the

BPC made its decisions not to recommend clemency before the

respondents could obtain any material for its consideration from the

international bodies they had petitioned, thus impairing the fairness of

the hearing. This breach brought into play the full range of remedies

under the redress clause.” [Para. 34]

3.19 Justice Pollard, on the issue of justiciability of the exercise of the prerogative of

mercy, agreed that the prerogative of mercy should be exercised by procedures which

are fair and proper and to that end are subject to judicial review.

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3.20 Justice Desiree Bernard, concurring with the decision of Justices de la Bastide

and Saunders, stated:

“The whole concept of mercy is complex depending as it does on the

exercise of a discretion inherent in some person or authority

designated to dispense it. It appeals to instinctive values of

conscience and fair play even in societies within the Caribbean

where the incidence of criminal activity is beyond acceptable limits.

In carrying out their mandates statutory mercy tribunals are expected

to facilitate the process by procedures that are fair in all respects

both to the public at large as well as to the condemned person.”[para.

30]

“In light of the principles of fairness enumerated by Lord Mustill in

Doody I reiterate that fairness required that the Respondents be

given an opportunity to make written representations to the Barbados

Privy Council as was their right so to do, and having regard to the

particular circumstances of a lapse of two years since the first

warrant for their executions was read.” [para. 32]

With respect to delays in carrying out execution, Justice Bernard stated:

“I endorse the guidance and suggested time limits of Pratt, and

commend them to the other jurisdictions of which this Court is

currently the final appellate court. Delays which reach unacceptable

levels can deny a condemned person the constitutional protection of

the law which is the Gibraltarian rock on which every judicial

system is built, and in which confidence of the public resides. This

must not be confined only to the post-conviction stage of trials, but

efforts must be made to expedite the pre-conviction process which in

most constitutions guarantees to an accused person protection of the

law.” [para. 36]

3.21 These judgments were thoroughly analysed by Mr. David Batts (now Mr. Justice

Batts) in an article entitled “The CCJ Proving Detractors Wrong or Flattering to

Deceive?”, Caribbean Rights Journal, Vol. 1. His concluding remarks are worth

quoting:

“In the final analysis the CCJ has established that Human Rights and

the established principles in that regard will be at the forefront of its

determinations. The quality and robustness of the approach

convinces me that this is not mere flattery. It appears that the thesis

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for the Court and the antithesis from the detractors have synthesized,

and have resulted in the creation of an institution of which we can be

justly proud.”

3.22 In Lashley and Campayne v. Det. Cpl. Winston Singh [2014] CCJ 11(AJ), the

Court considered whether the conduct of the Appellant’s counsel at the trial had

deprived him of a fair trial stated:

“Counsel for Lashley and Campayne after he chose not to lead any

sworn evidence had the tactical advantage of depriving the

prosecution of a closing address. This decision was a tactical move

to enable him to have the last word. This move, like other strategic

moves of counsel, did not achieve the desired result. However, what

the preceding paragraphs demonstrate is that the Appellants were

granted the full panoply of their rights at trial.” [Para. 21]

On the question of sentencing, the majority (Justices Byron, Nelson, Saunders and

Hayton) stated:

“The principles on which appellate courts will interfere with a

sentence are well settled. This Court will not interfere with a

sentence unless it is manifestly excessive or wrong in principle. It

matters not that individual members of an appellate court would

themselves have imposed a different sentence. The matter of

sentencing involves an exercise of discretion. The matters to be

taken into account for the purposes of sentencing (circumstances of

the offence aggravating factors and mitigation) are well established

and apply to the sentencing decision in this case.” [Para. 30]

and concluded:

“In the final analysis, it cannot be said that the learned Chief

Magistrate did not bring to bear on her decision the proper principles

applicable to sentencing or failed to apply such principles properly

or at all. Having regard to the public interest she gave great weight

to the prevalence and seriousness of the offences charged and the

apparent lack of remorse on the part of the Appellants. There is no

proper basis upon which an appellate court should interfere with the

exercise of the learned Chief Magistrate’s discretion save as to

varying her order by crediting the Appellants with the four days

spent on remand.” [Para. 36]

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In a minority judgment, Justice Wit and Anderson, stated:

“It is a well known principle of sentencing that young first offenders

should, as far as possible, be kept out of prison. They should, at

least, as a rule, not be given a long custodial sentence, lest they

receive a thorough and professional training to become hardened

criminals in the "University of Crime" (the overcrowded

Georgetown prison where Lashley and Campayne are currently

detained may very well qualify as such and is, despite the efforts of

those Prison Officers who are trying to make the best of it, one of the

most dehumanizing places we have seen in our region). We have

not discovered anything in the Chief Magistrate’s memorandum of

reasons that shows some basic understanding of this in our view

crucial principle of sentencing.”[para. 43]

and added:

“In the matter at hand, it is arguable that there would have been

sufficient reason for the Chief Magistrate to impose a custodial

sentence especially given the failure of the state to provide sufficient

probation officers and consequently sufficient guidance to young

offenders, the almost non-existent possibilities of community service

in Guyana and, what the Chief Magistrate has called, “the

prevalence of the offence” and “the increase of the commission of

crimes by young persons.” Under these circumstances, it would be

difficult if not impossible for a sentencing judicial officer to let the

offender “of the hook” as a practically toothless non-custodial

sentence, not without reason, would be perceived by the general

public. In the circumstances of the case before us, the proper

sentencing approach would in our view therefore have been to use

the short sharp shock method of imposing a sentence of six month

with the warning that if there is to be a next time, the court will react

with the full force of the law.” [Para. 45]

3.23 Both the strict and more severe approach of the majority and the liberal and

more positive approach of the minority are sensitive to societal needs as well as the

importance of rehabilitation, although the majority were clearly influenced by the

traditional non-interference policy of appellate courts in reviewing sentences in

criminal cases.

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3.24 In Lucas & Carillo v. Chief Education Officer, The Minister of Education et al

(2015] CCJ 6(AJ), the Appellants had challenged their suspension from their posts as

Principal and Vice-Principal of a Secondary School in a mixed claim for judicial

review and constitutional review. The Court of Appeal quashed the suspension on the

basis that the Chief Education Officer had acted ultra vires in suspending the

Appellants but held that there was no breach of constitutional rights. The Court

posited that while the right to work was an important socio-economic right, the scope

of such a right must vary with the economic well-being of the country and therefore

the right to work has to be interpreted as an opportunity to earn a living and not as a

guarantee of employment. The majority held that a breach of section 15 of

the Constitution of Belize would only arise if the Ministry had placed an unjustifiable

fetter on the Appellant’s right to freely choose or practice a trade or profession. On

the issue of equal protection, the Appellants could only succeed by proving that they

had been treated differently from those in comparable circumstances.

3.25 On the issue of vindicatory damages, the Court acknowledged that the purpose

of vindicatory damages is to vindicate a constitutional right by reflecting the sense of

public outrage; underlining the importance of the constitutional right and deterring

future breaches, but this did not arise as there had been no breach of a constitutional

right.

3.26 In strong dissenting judgments, Justices Saunders and Wit said taking into

account the unfairness inherent in the procedures used to conduct the investigations,

and the accompanying undue publicity, there should be an award of damages for

breach of the Appellant’s fundamental rights. The decision of the majority is

explicable on the ground that the Court of Appeal had correctly held that the

investigation undertaken by the Minister was a fact - finding inquiry into the cause of

unrest and tension at ESTM and was not a disciplinary inquiry.

3.27 The Majority stated:

“In concluding that the Court of Appeal was right, we are aware that in

the field of suspensions pending investigation, the cases are not always

consistent in treating a right to be heard as not arising at a preliminary

stage. In our view, there is no formulaic answer to the problem and each

case must be decided on a careful examination of its own particular

facts. We are satisfied that the Court of Appeal could properly reach the

conclusion it arrived at on the facts.” [Para. 77]

The majority approach appears to be unduly conservative because if the basic facts

are not in dispute the CCJ was in as good a position as the Court of Appeal to evaluate

the legal implications of those facts.

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3.28 Justices Saunders and Wit in powerful dissenting judgments held that the

constitutional rights of the Appellants had been infringed. Justice Saunders stated:

(1) the Report on the Investigative Team had condemned the Appellants

and recommended their termination;

(2) they had been kept for 7 years in suspension, and while receiving a

salary were sitting at home unproductive, deprived of the satisfaction

that comes from contributing meaningfully, as professionals, to the

advancement of one’s society.

(3) there had been no appeal against the trial judge’s findings of

irregularity and absence of jurisdiction;

(4) in determining whether there has been an abuse of process, the

determining factor is not merely the existence of a parallel remedy

but also, the assessment that the allegations grounding constitutional

relief are being brought “for the sole purpose of avoiding the normal

judicial remedy for unlawful administrative action”. If one already

has obtained leave to bring judicial review proceedings, the addition

of serious claims for constitutional relief does not avoid anything of

the sort;

(5) the right to the protection of the law is broad and pervasive. The

right is anchored in and complements the State’s commitment to the

rule of law. The rule of law demands that the citizenry be provided

with access to appropriate avenues to prosecute, and effective

remedies to vindicate, any interference with their rights. The citizen

must be afforded “adequate safeguards against irrationality,

unreasonableness, fundamental unfairness or arbitrary exercise of

power”. The right to protection of the law may successfully be

invoked whenever the State seriously prejudices the entitlement of a

citizen to be treated lawfully, fairly or reasonably and no cause of

action is available effectively to assuage consequences to the citizen

that are deleterious and substantial. There is therefore likely to be a

breach of the right whenever a litigant is absolutely compelled to

seek vindication under the Constitution for infringement by the State

of a fundamental right. But even where no other fundamental right is

impacted, the right to protection of the law may also be implicated

when there is a violation of due process and a denial of the citizen’s

expectations of fairness, procedural propriety and natural justice.

One must quickly caution, however, that since the law usually

provides avenues to pursue these latter violations, not every instance

of them may be escalated up to a constitutional breach. Courts will

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regard as an abuse of jurisdiction resort to the supreme law in those

cases where the aggrieved person has some convenient alternative

process, outside the Constitution, that gives sufficient and effective

recourse, or where the breach is insubstantial. That is the essential

point of Harrikisoon where a teacher who was unlawfully

transferred elected to eschew the grievance procedure established by

the relevant statute, and which afforded him effective relief, and

contrived instead to amplify his grievance by invoking the

Constitution.

(6) Even if one concedes that the investigation here was intended to be

merely exploratory, that the actual terms of reference given to the

investigators, and the accompanying statements they and/or Ministry

officials made at the time, were consistent with such an intention, in

order to determine whether in fact there was fairness and procedural

propriety we must go further. We must go beyond intentions and

statements made and get to the substance of the matter. We must

critically assess what was actually done by the Ministry and its

investigators. In particular, we must consider: the content of the

report generated; the procedures utilised for carrying out the

investigation; the widespread publicity that accompanied the

investigation; and the effect the entire process had on the appellants,

their employment status and their reputations. The trial judge

considered these matters and her findings are consistent with the

tenor of the report and all that actually transpired in relation to the

investigation and its consequences. Those findings provided the

critical plank for her decision to quash the suspensions and make the

un-appealed orders she made.

(7) I believe also that the right to protection of the law goes beyond the

narrow premise of a right to be heard. The right encompasses

fairness in general which must be assessed in the round. The judge’s

assessment proceeded along those lines. She examined all the

circumstances surrounding what the ladies referred to in evidence as

their “very public prosecution”. She took cognizance of their status

and the indiscrete manner in which the investigation was conducted.

(8) When assessing the possibility of damages on a constitutional

application, courts must be wary of being fixated on financial loss

and trivialising, or dismissing altogether, personal injury that is

neither physical nor economic. Distress, anxiety, hardship, mental

and emotional trauma, these all constitute damage that must be taken

into account when the State violates the supreme law to the prejudice

of the citizen. For a professional person, the pain experienced from

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having her good name unjustly and publicly besmirched is likely to

be more hurtful than either physical injury or financial loss.

(9) But even an award of a sum of money, irrespective of its size, would

have done little to repair the reputational damage. The Constitution’s

redress section authorises the court to make declarations and give

appropriate directions to secure the enforcement of the fundamental

rights. The court is invited to be creative and pro-active,

unconstrained by the customary frame of common law forms of

reparation.

3.29 Justice Wit reasoned:

“Once it is established that the State has acted in gross violation of the

fundamental right of individuals to be treated fairly by the State, the

question arises whether the injury caused by this violation can properly

be remedied through administrative relief or whether more is needed,

for example, in the form of damages. If the latter is the case, then it is

necessary to answer the question whether statutory law or the common

law provides a proper basis for awarding these damages. Only when the

answer to that question is negative, it must be concluded that an

effective remedy is lacking and that hence the right of protection of the

law has been violated in which case, provided that the public interest

does not militate against awarding such remedy, damages can be

awarded under section 20 of the Constitution.” [Para. 178]

3.30 Justice Wit also stated:

“Although the Constitution of Belize does not specifically provide, as

does for example the South African Constitution, that the common law

should be developed to bring it up to par with constitutional standards, it

is certainly not prohibited to do so. On the contrary, as section 2 of the

Constitution indicates, any law, written or unwritten, that is inconsistent

with the Constitution shall, to the extent of the inconsistency, be void. I

would think that this includes an invitation to legal practitioners to assist

the courts in their endeavour and inherent duty to mold and develop the

common law in order to make it more just, fair and consistent with

constitutional standards. One such standard, for example, is providing

an injured person with proper relief for wrongful conduct, which is a

standard that directly and necessarily flow s from the fundamental right

to protection of the law. There is in my view nothing wrong with such

an approach. The common law is not static; it never has been. In the

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words of the great American judge Learned Hand, the common law

“stands as a monument slowly raised, like a coral reef, from the minute

accretions of past individuals, of whom each built upon the relics which

his predecessors left, and in his turn left a foundation upon which his

successors might work.” In our Caribbean region, where colourful coral

reefs abound, judges do not have to, and should not, depend on the

“accretions” that are being added by judges from a country where the

common law was born Caribbean judges are very capable to do that

themselves even more so where it concerns their own societies.” [Paras.

180-181]

3.31 In Gibson v. The Att-Gen of Barbados [2010] CCJ 3 (AJ), the appellant had

been awaiting trial on a charge of murder since 2002. In October, 2006 he

commenced this constitutional application in which he complained of breaches of his

fundamental rights. He alleged that for the adequate preparation of his defence he had

a constitutional right to be provided by the State with adequate “facilities”. He

claimed that such facilities included the assistance of an expert in the field of forensic

odontology as well as the services of other relevant expert witnesses of his choosing.

He also alleged that in breach of his constitutional right he had not been tried within a

reasonable time. He requested from the court: a variety of declarations in relation to

these alleged breaches, a mandatory order compelling the State to provide the

requisite facilities within a reasonable time, a permanent stay or dismissal of the

charge and an award of damages.

3.32 At first instance in a bold and progressive judgment Blackman, J.(as he then

was) held, inter alia, that –

“the principle of equality of arms was essential to a fair trial. The

judge agreed with Gibson’s counsel that the provision of the expert

in question was a “facility” the cost of which should be borne by the

State given Gibson’s lack of means.” [Para. 19]

The Court of Appeal held that:

“Gibson had no constitutional right to State-funded facilities that

included provision of an expert; that Black man J was wrong to

make a mandatory order for funding of the expert by the State and

that in any event the order made by Blackman J imposing such an

obligation was too open-ended.” [Para. 23]

Rather more cautiously but still in the furtherance of a just and fair solution the

approach taken by the CCJ is that Gibson’s claim to have the services of a forensic

26 | P a g e

odontologist and his complaint about inequality of arms are better assessed in the

context of his right to a fair trial. Thus, where the inequality of arms is so serious and

the accused so handicapped that the mere inequality is likely to have a significant

impact on the outcome of the trial, the accused is entitled then to argue that his

fundamental right to a fair trial contained in section 18(1) is being infringed. In the

circumstances of this case it was open to Gibson to demonstrate that without the

services of a forensic odontologist his impending trial would not be fair. Since the

Constitution permits him to complain of threatened infringements of his fundamental

rights, he was not obliged to wait and make this allegation at the trial. In a case like

this one, the complaint should ideally be made as early as possible by way of a

constitutional application brought in a timely manner. When an accused person

alleges that his trial is likely to be unfair and the court is persuaded by the allegation,

the court cannot permit the trial to occur or to continue under conditions that render it

unfair. Where the complaint is successfully made after the trial has concluded an

appellate court is obliged to quash any conviction arising from the hearing. [Paras. 35-

36]

3.33 In a principled and practical assessment of the particular circumstances, the

CCJ stated:

“[37] The starting point in the assessment is the presumption of

innocence. See: s. 18(2)(a). Gibson has maintained his innocence

and it must be presumed that he is innocent. It is not for him to

“establish his innocence at trial”. The Crown has the onus of proving

his guilt. His trial is before a jury. He is charged with murder, the

most serious of crimes. It is accepted by the parties before us that the

only evidence positively linking him to the crime is of a highly

scientific kind and that without this evidence there is no viable case

against him. That evidence is to be given in court by a doctor who is

not himself in regular practice in the particular scientific field. That

field is, in the words of the Court of Appeal, of a “complex and

controversial” nature. If Gibson were a wealthy man he would be

able to procure the services of someone who can assist him in

formulating questions for Dr Eastmond; in probing, testing that

evidence; in pointing out to the jury any weaknesses there might be

in it. But due to Gibson’s lack of means it is clear that he would be

severely and unfairly handicapped in conducting a meaningful

defence to the allegations made against him.

[38] There is another reason why it is important that Gibson be

provided with such assistance. As far as it is possible to do so, we

must ensure that at his trial the truth is established especially bearing

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in mind that if Gibson is convicted the judge has no option but to

impose a death sentence.”

3.34 On the issue raised by the Crown as to whether the doctrine of separation of

powers precluded the Court from granting relief which imposed on the Executive

the duty to provide the necessary funds the CCJ made the proposed declaration

that:

“while it is true that a certain comity must exist between the various

branches of the State, we do not subscribe to the notion that the

separation of powers principle can preclude the court from making

an order against the Executive in exercise of the Court’s power to

redress or prevent breaches of constitutionally protected rights

merely because the order requires the Executive to expend public

funds. The Constitution is supreme and in section 24(1) a

responsibility is cast on the court 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 the

fundamental rights. Section 24 is deliberately couched in broad

terms because, as was said by Lord Bingham in Gairy v A.G. of

Grenada, the court has, and must be ready to exercise, power to

grant effective relief for a contravention of a protected constitutional

right. If the appropriate way to remedy a breach is to make a

mandatory order for the payment of money by the State, then that is

what the court is empowered and obliged to do.” [Para. 42]

4. CONSTITUTIONAL CONSTRUCTION

4.1 Probably the most challenging task presented to a Court in the context of a

controlled Constitution is that of pronouncing on the validity of laws passed by the

democratically elected legislature. The US Supreme Court was inaugurated in 1790

but it was not until 1803, 13 years later in Marbury v. Madison9 that it asserted

judicial review as a positive constitutional doctrine.10

4.2 The case of Att-Gen of Belize v. Zuniga et al [2014] CCJ 2 (AJ) concerned the

constitutionality of amendments to the Supreme Court of Judicature Act of Belize.

The impugned amendments provided for a new section 106(A) which in substance

creates the offence of knowingly disobeying or failing to comply with an injunction

9 1 Cranch 137 (U.S.1803) 10 See Bernard Schwartz, A History of the Supreme Court (1993), pp. 39-47.

28 | P a g e

(in particular an anti-arbitration injunction); prescribed severe penalties for persons

convicted of this offence, including mandatory minimum penalties and provided for a

range of ancillary matters.

4.3 The background to the appeal is a series of continuing disputes with members of

both the Zuniga and the BCB Holdings groups. These disputes relate back to an

“Accommodation Agreement” entered into in 2005 between the Belize Telemedia

Limited (“Telemedia”) and the former Government, by which certain financial

concessions, assurances and inducements were granted to Telemedia. The new

elected Prime Minister condemned the agreement as “so patently illegal, so patently

immoral, so patently anti-Belize, should continue to torture us, to bleed us, to subject

us to death by a thousand cuts cannot for one second more be countenanced.” The

Government repudiated the Agreement and Telemedia invoked the arbitration clause

in the Agreement. BSL commenced proceedings in the USA to enforce the Award

against the Government for BZ$38.5 million for breach of the Agreement. The

Government then passed legislation to acquire 71% of the shares owned by a T & C

Company in Telemedia. The Belizean Court declared this acquisition to be

unconstitutional.

4.4 There exists a bilateral investment treaty between the Government of the United

Kingdom and the Government of Belize prohibiting the nationalisation or

expropriation of investments except for specified purposes and upon payment of just

and equitable compensation. The Government passed legislation acquiring 94% of the

shares in Telemedia of which Dunkeld International Investments Ltd. (“Dunkeld”)

was a 71% shareholder. Dunkeld responded to the acquisition of its shares by

invoking the arbitration clause contained in this bilateral investment treaty. BCBL

also notified the Government of its intention to commence arbitration proceedings.

4.5 The amending legislation was challenged on the grounds that:

A. The legislation breached the separation of powers principle because

it was introduced specifically in order to target the members of the

Zuniga group in their recourse to international arbitration and to

deter them from pursuing that remedy (the ad hominem point);

B. The legislation was enacted for an improper purpose and was

therefore in breach of the section 68 constitutional imperative that

the National Assembly make laws “for the peace, order and good

government of Belize” (the section 68 and improper purpose

point);

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C. The legislation further contravened the separation of powers

principle because it introduced a special regime for the prosecution

and harsh punishment of a breach of an anti-arbitration injunction

which can be initiated at the complete discretion of the Executive, in

the person of the Attorney General, as an alternative to the normal

jurisdiction of the courts to deal with contempt (the discretion of

the Attorney General point). [Para. 34]

4.6 The majority stated:

“To assess the validity of a law, however, the Court does not simply lay

the Constitution side by side with the impugned legislation to determine

whether the latter squares with the former. The words written in the

Constitution do not exhaust the full meaning and breadth of that

instrument. Such a perfunctory approach to judicial review would do a

serious disservice to the solemn mandate assigned the court to uphold

and promote constitutional supremacy. The court‘s judicial review

responsibility must necessarily include discovering and applying

fundamental norms and principles that characterise the Constitution.”

[Para. 35]

4.7 The Court reasoned that the provisions of the Constitution are that inconsistent

laws are to be invalidated by the Court “to the extent of the inconsistency”. This

means that, provided it is possible and feasible to save a law that may contain one or

more inconsistent provisions, a scalpel, rather than a machete, is to be used by the

court to sever that which is inconsistent. The two Acts being penal in nature should be

clear, certain, coherent and fair in the consequences they pose for those who risk

falling foul of them. Failing this, the rule of law, yet another fundamental, albeit at

times, implicit feature of the Constitution, is placed in jeopardy.

4.8 One challenge to the amendment was that it was ad hominem and contrary to the

principle which had been enunciated by the Privy Council in Liyanage v. R.11. The

CCJ accepted the Court of Appeal’s view that, to the extent that sub-section 8

empowered the court to restrain a party from proceeding with foreign arbitration

proceedings on the ground that such proceedings would be oppressive, vexatious,

inequitable, or would constitute an abuse of the legal or arbitral process, the sub-

11 [1967] A.C.259

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section merely codified pre-existing law which had never been regarded as being in

conflict with the Constitution.

4.9 On the question of separation of powers, the Court stated:

“It is trite law that the court is entitled to determine whether laws

enacted by Parliament are in conformity with the Constitution and to

strike them down to the extent of their inconsistency. If the Chief

Justice's words are interpreted to mean that, absent some breach of the

Constitution (outside of a perceived breach of section 68 itself) the

Court is at liberty to declare a law void merely because, in its wisdom,

the court does not consider the law to fall within the compass of what

conduces to the "peace, order and good government" of Belize, then

respectfully, we must disagree. We prefer the approach taken by

Mendes JA who noted that "it is not possible to eke out an implied

principle that the judiciary may second guess the elected representatives

on the question of what purpose it is appropriate for legislation to serve.

Such a power would put the judiciary in competition with the legislature

for the determination of what policies ought to be pursued in the best

interests of Belize.” [Para. 49]

4.10 The CCJ added that it would not go so far, however, as to endorse the blanket

suggestion that a court may never be concerned with the propriety or expediency of an

impugned law. It may be appropriate and even necessary to be so concerned where,

for example, the purpose of the law is a relevant issue in determining a breach of the

separation of powers doctrine or a violation of a fundamental right.

4.11 The majority also decided it was a vital precept of just penal laws that the

punishment should fit the crime.

4.12 The CCJ expressed agreement with the conclusion reached by the courts below

that the sub-section contravened the principle of the presumption of innocence, on the

basis that the analysis must begin with the fundamental duty of the prosecution in a

criminal case. The CCJ made the following important pronouncements:

“The basic principle is that the prosecution must prove every

essential ingredient of a criminal offence. It is this principle that is

reflected in section 6(3)(a) of the Constitution; a provision that must

be construed generously in favour of the individual. The burden on

the prosecution does not extend to every conceivable fact in issue.

Section 6(3)(a) is not infringed by a law requiring a defendant to

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establish a particular matter of fact or law. Section 6(10)(a) of the

Constitution actually permits the State to impose on an accused “the

burden of proving particular facts”. But the imposition must be

reasonable and proportionate. A balance must be struck between the

importance of what is at stake and the rights of the defence. Since

section 6(10)(a) is a derogation from a right that is to be generously

construed, the derogation must be construed strictly.” [Para. 71]

4.13 The CCJ declared that in resolving the tension between section 6(3)(a) and

6(10)(a) the overriding concern is to promote the rule of law by ensuring a trial that is

fair. Ordinarily, in cases of contempt of court the prosecution has the burden of

proving conscious, deliberate disobedience of a court order. But here, the sub-section

is framed in a manner so as to relieve the prosecution of the onus of proving mens rea

which is the vital element of the offence targeted by sub-section 5. Usually, section

6(10)(a) comes into play with reference to “offences arising under enactments which

prohibit the doing of an act save in specified circumstances or by persons of specified

classes or with specified qualifications or with the licence or permission of specified

authorities”. Here, the accused does not have to show some positive exculpatory act

on his part but rather is put in the unenviable position of having to establish a

negative, namely that he did not consent to or connive at the disobedience to the

injunction. If the sub-section is to be construed in a manner that widens the blanket of

guilt beyond those captured by sub-section 4, it comes perilously close to legislating

guilt by association. The CCJ affirmed the decision of the Court of Appeal that the

sub-section contravenes section 6(3)(a) of the Constitution and is therefore invalid.

4.14 The CCJ stated that the power granted by the Court to issue anti-arbitration

injunctions is not per se unconstitutional as a deprivation of property because apart

from some concrete instances it is difficult to envisage a circumstance in which a

court will be so insensitive to the nature and scope of the jurisdiction of an arbitral

tribunal and the comity that must characterise the relationship between the courts and

such tribunals that the power conferred might be exercised in a manner that renders its

exercise unconstitutional. Empowering the court to exercise a power does not oblige

the court to wield that power or to wield it in an indiscriminate fashion. Accordingly,

the CCJ held that there is nothing inherently unconstitutional in the court being given

a power to restrain an abuse of the legal or arbitral process or to vacate awards.

4.15 With respect to severance, the majority stated:

“In mandating that a law inconsistent with the Constitution is void to the

extent of its inconsistency, the Constitution sanctions the principle of

severance and encourages its exercise where possible. When faced with

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a statute that contains material that is repugnant to the Constitution the

court strives to remove the repugnancy in order, if possible, to preserve

that which is not. As long as the constitutional defect can be remedied

without striking down the entire law, the court is obliged to engage in

severance. In some cases it is not difficult to do this. But in other cases

it is necessary to invalidate an entire Act so that, if it wishes, Parliament

can have another go at the legislation. The court will do this because,

broadly speaking, what remains after judicial surgery is incoherent or so

impairs the legislative object that the constitutionally valid part cannot

be said to reflect what Parliament originally intended.” [Para. 88]

4.16 With further reference to this difficult issue of severability, the Court stated that

it was:

“entitled to assess whether the legislature would have preferred what is

left after severance takes place to having no statute at all.59 If it can

safely be assessed that what is left would not have been legislated, then

severance would not be appropriate. As Demerieux notes, severance

involves speculation about parliamentary intent.60 The court seeks to

give effect, if possible, to the legitimate will of the legislature, by

interfering as little as possible with the laws adopted by Parliament.61

Striking down an Act frustrates the intent of the elected representatives

and therefore, a court should refrain from invalidating more of the

statute than is necessary.” [Para. 90]

4.17 The majority enunciated the following statement of both principle and

practicality:

“It is axiomatic that after a court has severed the unconstitutional

portion of an impugned law, that which remains will never be precisely

what Parliament had intended originally to enact. Further, a court can

never know the intent of each legislator who voted to enact a statute. No

court can ever be perfectly sure about parliamentary intent. If courts

took it upon themselves to sever only after they possessed such

certitude, then severance will never actually take place.” [Para. 93]

4.18 Noting the history and purpose of the Act, the Court held that having regard to

the fact that Parliament had introduced various provisions to strengthen the provisions

relating to contempt, the mandatory minimum penalties should not be viewed in

isolation. The Court held that the constitutional valid subsections of the Act are in no

way inextricably bound up with, or reliant for their efficacy upon the reverse burden

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section and/or the mandatory minimum sentences. When faced with an invalid

mandatory sentence, in lieu of invalidating the entire sentencing regime and then the

whole underlying law, courts everywhere would read down the mandatory sentence or

simply remove it in order to leave standing any valid penalty prescribed by the

legislature.

4.19 The majority concluded:

“the legislation is constitutionally valid save for i) the mandatory

minimum penalty regime contained in sub-section 3; ii) the proviso to

section 3 and also sub-section 3(a), and iii) sub-section 5 in its entirety.

It follows that the Court should sever these provisions from section

106(A). We accordingly dismiss the appeal of the Attorney General and

the cross appeals of both the Zuniga and BCB Holdings groups.” [Para.

100]

4.20 The minority judgment is robust and compels attention. They stated that:

“The majority are of the view that the penalty regime stipulated by

Section 106A (3) can be salvaged by severing the mandatory minimum

penalties on the ground that what remains will still leave intact

Parliament‘s comprehensive scheme laid out in Section 106(A) for

prosecuting and punishing the breach of an injunction. We consider that

there are several problems with this approach. Firstly, the judicial

surgery to be performed on Section 106A (3) would appear to go

beyond what is permissible and to intrude upon the legislative function.

The severance proposed by the majority involves the re-fashioning of a

discrete legislative provision by both deletion and addition. Thus the

proposed severance results in the deletion of most of the penalty

provision; in strict mathematical terms close to two-thirds of the

wording is surgically removed. But not only is a significant majority of

the provision excised, new words are added. Where Parliament

stipulated that the court must impose a certain financial penalty, the

majority would change the wording by adding additional words to make

the provision mean a fine ― which may extend to the mandated

financial penalty. This clearly runs counter to the parliamentary

intention and is therefore fundamentally different from the approach

undertaken in Hinds v The Queen of relocating the sentencing power

from the executive to the judiciary.” [Para. 109]

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“In our view, however, severance should never be used as a repair tool

for saving an unconstitutional law that has problematic aspects and

which, being now largely divorced from the reasons for which it was

apparently made, is in a sense largely academic and theoretical. In any

event, the “inconsistency” referenced in the Constitution extends not

only to discrete provisions containing the impugned provisions but also

to other provisions in the law which while not in themselves

inconsistent are inextricably interwoven with those found to be

inconsistent.” [Para. 110]

4.21 Referring to the test of severability in Attorney-General of Alberta v. Att-Gen.

for Canada, the minority stated:

“The formulation of the test for severance in this way masks a

fundamental ambiguity. It equates the coherence of the

interconnectedness of the provisions in the statue with the question of

the parliamentary intention when these may not be synonymous. It is

possible that what remains after severance can grammatically and

conceptually stand on its own but at the same time not be what

Parliament intended or would have enacted. To apply the tool of

severance could then result in a law being left on the statute books that

Parliament would not have enacted.” [Para. 114]

“If the legislative provisions which remain are of a fundamentally

different kind then it cannot be said with any confidence that Parliament

would have enacted it on its own, and it should, accordingly, be struck

in its entirety because to leave what remains on the statute books in

these circumstances would be to intrude upon the legislative function. It

is only if the judicial conscience is clear that Parliament would have

enacted the remainder of the legislation independently of that declared

unconstitutional that severance is permissible. [Para. 115]

The minority judgment reasoned:

“But in circumstances where critically important provisions are by

universal judicial consent deemed unconstitutional, the issue of

parliamentary intention becomes relevant to the question of severance,

and it becomes permissible to revisit and to take into account the

rationale for the passage of the legislation. We consider that the

background to the passage of the Amendment Act makes it less likely

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that Parliament would have passed the legislation without the impugned

provisions.” [Para. 121]

4.22 I have quoted at length extracts from this seminal judgment because in

my opinion they represent the clearest and most comprehensive enunciation of

the principles which should guide Courts in the exercise of this critical function

of the judicial review of the constitutionality of legislation. The minority

judgments in this case serve to enhance rather than diminish the value of the

contribution of the CCJ to this area of Commonwealth constitutional

jurisprudence.

5. COMMERCIAL LAW

5.1 The quality of appellate adjudication in the area of commercial law is of

particular interest to businessmen, investors and financial institutions. Such persons

are greatly interested in the clarity and expedition with which their commercial

disputes are resolved as well as with the soundness of the reasoning applied in

commercial cases.

5.2 In LOP Investments Ltd. v. Demerara Bank Ltd. [2009] CCJ 10(AJ), the

appellant company entered into a loan agreement with the Bank and issued a

debenture to provide security by way of a charge over identified immovable and

movable property so as to cover its financial obligations to the Bank. The debenture

deed specifies events of default and confers power on the Bank on any such default to

appoint a receiver and manager, with specified management powers and power to sell

any of the charged property, while also irrevocably conferring a power of attorney

upon any appointed receiver to sell the charged property. Despite these provisions in

the debenture, the appellant contended that the receiver does not have power to take

possession of the charged land and sell it because he had been appointed not by the

Court in the course of some legal proceedings but merely by the Bank. The appellant

submitted that a debenture can only confer a valid security interest in respect of land

if the land in question has been the subject of a mortgage passed and executed before

the Registrar of Deeds in accordance with sections 12, 14 and 16 of the Guyana Deeds

Registry Act.

5.3 The CCJ endorsed the validity of receivers' powers of sale under debentures that

are secured otherwise than by a separate mortgage under the Deeds Registry Act, so

long as the debentures have been duly created and registered under the Companies

Act.

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5.4 The gravamen of the Appellant’s submission was that the Civil law legislation of

Guyana in dealing with immovables and mortgages thereof expressly preserved the

traditional Roman-Dutch law. The vigour of this remains such that where the

substance, form and effect of a security instrument bear all the hallmarks and

characteristics of a mortgage, then, despite its appellation as a debenture, the law and

practice applicable to its creation, its attachment to particular security, and its

perfection must be the Roman-Dutch law and practice for conventional mortgages.

The Court made the important observation that:

“Whenever an instrument is an agreement whereby a landowner agrees

with a creditor that particular land that he owns will be available to

secure a loan from the creditor, this amounts to a contract for a

"mortgage" or "hypothec" or "charge", the particular terminology being

immaterial. If nothing more is done with this contract, if the debtor

defaults, the creditor can invoke the court's aid for a money judgment

determining the precise extent of the debtor's secured financial

obligation[FN24] and then for orders foreclosing the debtor's ownership

of the mortgaged, hypothecated or charged land and for selling the land

to enable the creditor to be duly reimbursed. If, however, the creditor

passes and executes the mortgage, hypothec or charge before the

Registrar so as to obtain a money judgment and a real right by

registration in the Deeds Registry, he can later rely upon the priority of

this in the event of the borrower's default, so as to have the court

foreclose the borrower's ownership and arrange for an auction sale of

the land to enable the mortgagee to be duly reimbursed.” [Para. 41]

5.4 In Guyana Bank for Trade and Industry [2010] CCJ 4, the Bank sued a company

director who was alleged to have guaranteed the liability of the company to the bank

for a sum of up to $10 million. The main contention of the director was that she knew

nothing of this guarantee, not having signed and initialled it. In a short judgment that

hinged upon the credibility of the witnesses, the judge found the director liable for

$10 million with interest, though not dealing as fully with the evidence as he ought to

have done in a perfect world. The CCJ upheld the Bank’s claim for recovery against

the Director.

5.5 In Sheermohamed v. Sheermohamed v. Nabi [2011]CCJ 7(AJ) an application

was made to challenge the appointment of an actuary and as a director of a family

company on the basis that it was made at a meeting attended by two Directors and to

which a third Director had not been invited. CCJ stated with respect to the locus

standi of the Appellant to institute the action on behalf of the company:

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“It would be highly unusual, possibly unprecedented, for an order to be

made at this stage of the proceedings for the substitution of a party.

Normally, such an order would not even be considered. But as already

pointed out, the facts of this case are very special in that the party whom

it is proposed to introduce by way of substitution has participated in all

the proceedings to date as fully as if he were a party and behaved and

was treated by the judge and the opposing parties in the court of first

instance as though he was a party. Nonetheless, we do not think that we

should make an order for substitution unless we are convinced that such

an order is necessary in order to avoid serious injustice.” [Para. 36]

“Without resort to section 68 therefore but for the reasons stated above,

we hold that there was sufficient admissible evidence in the form of out-

of-court assertions made by Amin to support the judge‟s finding that in

September, 2004 Azeez was not a director even though the exact route

by which he exited office was not established, the applicant having

failed to discharge the evidential burden which shifted to it to explain

away those assertions. It follows therefore that the lawfulness of the

directors‟ meeting held on the 10th September, 2004 and of the

appointment of Ashmid as a director which took place at that meeting,

falls to be determined on the basis that at that time there were only two

directors of the Company, namely, Aslim and Amin.” [Para. 54]

“The Company’s articles qualify as “a corporate instrument of a

former–Act company lawfully in force immediately before the

commencement of this Act”. Accordingly, the effect of section 335 is

that articles 83 and 103 of the Company’s articles prevail over section

73 of the Act and Aslim and Amin had the power to appoint a third

director even though the vacancy arose because of a failure by the

shareholders to elect a sufficient number of directors. For these reasons,

we hold that Aslim and Amin did have the power to appoint a third

director at their meeting on the 10th September, 2004.” [Para. 61]

5.6 The CCJ also had to consider whether only two directors were competent to

convene a meeting of the family company shareholders at which resolutions were

passed appointing one director and confirming another as a director. The CCJ held

that the Court of Appeal was wrong in holding that the meeting was valid

notwithstanding that it was called before the expiration of 21 days from deposit of the

requisition. The difference in meaning between the convening of a meeting and the

holding of a meeting is high-lighted in section 135(5) itself. In that sub-section the

directors are given the opportunity to “convene a meeting to be held not later than 28

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days after the meeting is convened” (emphasis added). [Para. 11] Accordingly, the

CCJ held that:

“section 135(5) therefore confers on a requisitionist the power to call

a meeting of shareholders, but only in circumstances in which the

directors have failed to give to shareholders within 21 days of the

deposit of the requisition, notice of a general meeting to be held

within 28 days of the date of such notice. The power which is given

to the requisitionist is thus from the outset subject to that limitation.

A shareholder has no power to call a general meeting except he does

so under and by virtue of some provision in the Act. The directors

cannot exempt the requisitionist from his obligation to wait for 21

days before convening a meeting.” [Para. 12]

The CCJ judgment not only adopted a practical and fair approach to locus standi in

proceedings relating to a company but elucidated the rules relating to the convening

of meetings of a company which are critical to corporate administration.

5.7 Guyana Furniture Manufacturing v. Ramaharran et al [2012] CCJ 5(AJ). The

Company granted two debentures one with ICC and the other National Bank of

Industriy and Commerce. The company defaulted with payments to the Bank which

appointed Mr. Rambarran as receiver/manager of the charged property at an agreed

commission of 1% for all moneys collected by him. This was increased to 3$ on the

completion of additional responsibilities. ICC also appointed a receiver, Mr. S. at an

agreed commission of 4%. CCJ held that:

(i) Mr. Ramcharan’s commission, having been fixed contractually

between himself and the Bank, could have been varied by them

without the consent of the Company or resort to a court for such an

order;

(ii) Mr. Ramcharan was entitled to full payment of his commission

during the period when he operated as sole Receiver. Any payments

of commission to Mr. Solomon after his appointment as Receiver

were lawfully made out of all monies due to or collected on behalf of

the Company, the two Receivers being paid proportionately

according to their debentures. [Para. 27]

5.8 There were some adverse and somewhat scurrilous criticisms of this judgment.

These criticisms were legally unsound. The Acting Chief Justice of Guyana and the

Guyana Court of Appeal had come to the same conclusion. The CCJ reaffirmed the

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basic principle that the Court will not lightly reverse the benefits or protection

accorded to parties by their commercial agreements.

5.9 In British Caribbean Bank Ltd. v. Att-Gen. of Belize [2013] CCJ 1 (AJ), the case

was brought before the Court to assess the jurisdiction of courts of Belize in issuing

an injunction to restrain international arbitration proceedings. These arbitration

proceedings were initiated by British Caribbean Bank Limited (“BCB”) against the

Government of Belize (“GOB”) in accordance with a Bilateral Investment Treaty

(BIT) established 30 April 1982 between the governments of Belize and the United

Kingdom. BCB sought to resolve a dispute regarding the compulsory acquisition by

GOB of loan and mortgage debenture facilities with a face value of US $24M owed to

BCB by Belize Telemedia Ltd. Multiple proceedings were initiated in the domestic

courts of Belize between GOB and BCB. Further to these proceedings, on 5 May

2010, BCB commenced arbitration proceedings under the BIT. In response, GOB

pursued an order from the court to halt the arbitral proceedings and was granted an

interlocutory injunction on 16 August 2010. This injunction was upheld by the Belize

Court of Appeal with the reasoning that the right to arbitration was dependent on the

completion of the proceedings between the two parties in the domestic courts. BCB

appealed the matter to the CCJ. The key question raised by this matter regards the

principles of law governing the jurisdiction of the courts in issuing an injunction to

halt international arbitration proceedings commenced in accordance with an

arbitration clause agreed to by the pertinent parties. In answering this question the

CCJ found there were three outstanding issues to be addressed: first, whether the BIT

created for BCB an unqualified or indefeasible right to arbitration; second, whether

the Court should have determined the merits of the claim for a permanent injunction

or should strictly limit its enquiry to whether there was a serious issue to be tried; and

third, whether there was sufficient basis for the interlocutory injunction granted to

restrain the arbitration. The Court stated that “it must be particularly cautious in

restraining arbitration between the contracting parties, reserving an injunction for only

the rarest of instances where the high threshold of the proceedings being oppressive,

vexatious, or an abuse of process is met. In the case at hand, the grounds for the claim

of the proceedings being vexatious was the multiplicity of domestic proceedings. The

CCJ held that there is no precedent to support the assertion that these multiple

proceedings alone are vexatious or oppressive, making the granting of the

interlocutory injunction on these grounds unsound” and therefore discharged the

interlocutory injunction imposed by the lower courts.

5.10 It is submitted that this sample of the Court’s adjudication in the realm

of commercial law demonstrates a sound appreciation of the practical realities

of business operations as well as an intellectual mastery of the relevant

jurisprudence.

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6. PROPERTY LAW

6.1 The abolition of slavery in the Caribbean, the phenomenon of absentee landlords

and the circumstances of the vast amount of unoccupied Crown lands, resulted in a

culture of squatting on other person’s land or as is more dramatically and probably

more accurately termed in Jamaica as “capturing” land. Not surprisingly, therefore,

despite land registration systems, acquisition of land by adverse possession has

perennially prevailed. In the result the CCJ has had the inevitable and unenviable task

of adjudicating in respect of land disputes occasioned by squatting.

6.2 In Lachana v. Arjune & Arjune [2008] CCJ 12(AJ), the CCJ held that the

Lachanas who had petitioned for a declaration of title to their plot of land on the basis

of the Title to Land (Prescription and Limitation) Act, Chap. 60.02 of the Laws of

Guyana were required to satisfy the Court that, a) for a period of twelve years or more

they had had sole, exclusive and undisturbed possession of their piece of land, b) their

possession was open and adverse to the “paper owners” and c) their possession was

not obtained by fraud or by some consent or agreement expressly made or given for

that purpose.

6.3 The Lachanas had endeavoured to claim continuity of possession by relying on

the period of their deceased’s father’s occupation of the subject land. The CCJ stated:

“The problem with this submission is that nowhere does the

evidence show or even suggest that Albert, although he had been

occupying the land for many years, had ever been in adverse

possession of it. On the contrary, the tiny bits of evidence that can be

found in the record rather seem to indicate the opposite. And so,

there was really nothing to which David and Sadoney could tack on

any possible adverse possession of their own.” [Para. 18]

6.4 On the basis of how the Appellant’s Case had been pleaded and presented this

aspect of the case did not properly arise and therefore the formulation of the law

based on the “adversity of possession” can be regarded as obiter and required

clarification or correction. This was highly desirable in the light of the convincing

reasoning of the House of Lords in JA Pye (Oxford) Ltd. v. Graham12 and the Privy

Council in Wills v. Wills13

12 [2003] 1 A.C. 419 13 (2003) 64 W.I.R.176

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6.5 In Toolsie Persaud v. Andrew James Investments Ltd. & Others [2008] CCJ 5

(AJ), the CCJ itself stated more correctly:

“Thus, the position is that a claimant to land by adverse possession

needs to show that for the requisite period he (and any necessary

predecessor) had:

(i) a sufficient degree of physical custody and control of the

claimed land in the light of the land’s circumstances (“factual

possession”), and

(ii) an intention to exercise such custody and control on his own

behalf and for his own benefit, independently of anyone else

except someone engaged with him in a joint enterprise on the

land (“intention to possess”). [Para. 28]

6.6 In Bisnauth v. Shewprashad & Bisnauth [2009] CCJ 8 (AJ), the CCJ held that the

Courts below had fallen into error in finding that there was a tenancy between the

claimant and his mother but the evidence demonstrated that he was in occupation by

his mother’s consent. On the doctrine of adverse possession the Court stated in

referring to its previous decision in Toolsie v. Persaud, that it had been careful to

point out that in effecting entry to the land it was not important whether the intended

possessor was aware of his wrongful act or entered the land under the mistaken belief

that he had a legitimate right to enter, provided that such entry was not referable to an

agreement or permission of the true owner.

6.7 Mr. Justice Wit entered into a thorough and interesting discourse on the law of

acquisitive prescription from a Roman-Dutch law perspective which is particularly

relevant to Guyana and raised interesting questions of constitutional propriety. Wit,

J.A. stated:

“against the light of the developments in the land law, especially

with regard to the fading borders between licences and tenancies at

will, there is at least a presumption that, in case of doubt, the

relationship between the land owner and the person occupying the

land with his permission should, as a rule, be categorized as a

licence. This is the more so where the parties are closely related and

the relationship appears to be a family arrangement as in the case

before us.” [Para. 52]

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His Lordship added:

“Such an approach will both be in line with the Roman-Dutch roots

of Guyanese land law and, I may add, the Guyanese Constitution.

Section 142(1) of the Constitution clearly considers the protection

from arbitrary deprivation of property as a fundamental right worthy

of the highest form of judicial relief. It is equally clear that this right

is not without exceptions. Properties can be taken “under the

authority of a written law” and nothing done under the authority of

“any law with respect to the limitation of actions “shall be held

inconsistent with” that fundamental right (section 142 (2)(a)(vi) of

the Constitution) . But because of the very fact that it constitutes an

exception to such a fundamental right, the Title to Land (Prescription

and Limitation) Act and its provisions have to be interpreted in a

way that will be in keeping with its character as an exception. The

interpretation has to be such that the property rights of owners will

be preserved as much as reasonable. True, exceptions to fundamental

rights are generally possible and even necessary but the written law

which embodies them will have to contain what I have called

elsewhere “adequate safeguards against irrationality,

unreasonableness, fundamental unfairness or arbitrary exercise of

power.” If such safeguards are palpably lacking, such a law, or parts

of it, might, although complying with the formal requirement of

being a “written law”, still be unconstitutional (which might be

arguable if, for example, the legislator would decide to limit the

prescription period to one year or if he would expressly allow

prescription by concealed possession of land). Be that as it may, at

the very least, the interpretation of those provisions should be such

as to limit arbitrary deprivation of property as far as possible.” [Para.

53]

This may have some particular importance to Jamaica where the fundamental right to

property has some potential for horizontal enforcement.

6.8 I submit that overall, the reasoning of the CCJ with respect to the vexed question

of possessory land titles is thorough, refreshing and demonstrative of high judicial

analysis.

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7. EPILOGUE

7.1 There have been several speeches, articles and pronouncements on the CCJ,

particularly in recent months. It is amazing, however, that even those emanating from

lawyers have made no serious attempt to analyse and assess the judgments of the

Court. Mr. Bruce Golding in a recent article conceded that he had not done so and

strongly hinted that lawyers with the necessary training should do so. I submit that

the qualitative assessment of the Court’s judgments is now the single most important

factor in any decision as to whether or not to adhere to its appellate jurisdiction. I

have endeavoured to make that assessment in five major areas of the law in which the

CCJ has adjudicated.

7.2 It is quite true that Caribbean governments do not have to contribute financially

to the establishment costs of the Privy Council. One must bear in mind the old adage

that “you should not look a gift horse in the mouth”. Of course that is not to say that

if you continue to place your hand in its mouth it may close on you when you least

expect.

7.3 In a Note in The Law Quarterly Review, Vol. 129, p. 169, Mr. John Jeremie,

S.C., Head of the Faculty of Law, UWI, St. Augustine wrote:

“On September 21, 2009 the Financial Times published remarks of

Lord Phillips of Worth Matravers, then newly appointed first

President of the Supreme Court of England and Wales, in which he

is reported to have said that he was “searching for ways to curb the

‘disproportionate’ amount of time the Privy Council dedicates to

hearing Appeals from the Caribbean.” Lord Phillips was reported to

have questioned “whether some Privy Council cases – which have

ranged from Jamaican death row appeals to fights over press

freedom in Bermuda – need to be heard by a panel of five of

Britain’s most senior judges”. (In fact Bermuda is not a Caribbean

territory.)

In comment on the interview the Financial Times described the

Privy Council as a “creature of Britain’s nineteenth century colonial

pomp”. The writers did not in fact stop there. They turned their

attention to the newly created Supreme Court of the United

Kingdom, describing it as “quintessentially British constitutional

fudge, separating the judiciary from Parliament for the first time but

leaving intact a sister chamber widely seen as a post-imperial

anachronism.”

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Subsequently on September 24, 2009, the BBC, reflecting on the

Financial Times piece, described as a “minor public scandal” the fact

that Britain’s top judges are required to spend virtually half of their

time hearing overseas appeals largely from the Caribbean, on

business “of no interest to anyone in the United Kingdom”.

To the cynical eye this is an argument about money. The authors of

the BBC report cited a prominent Caribbean jurist, former Governor

General of St. Kitts Sir Probyn Innis, who is said to have remarked

that a demand for payment for services rendered by the Privy

Council would “shake them [Caribbean governments] out of that

denial that seems to affect us in the Caribbean”.”

7.4 I strongly suspect that if Caribbean States had to pay for the service they would

have no hesitation in adhering to the appellate jurisdiction of the CCJ for which,

through the estimable concept of the Trust Fund, they have already made a substantial

contribution. The continuing mendicancy is embarrassing, however graciously some

members of the JCPC may be in providing their invaluable service. However, it is

possible for us, as I have experienced, to have an appeal from three Caribbean Judges

of Appeal heard by three English Judges who do not regularly sit at the third level of

the Supreme Court (formerly House of Lords). Several years ago Hon. Edward

Seaga, former Prime Minister of Jamaica, suggested that Jamaica should adopt the

appellate jurisdiction of the CCJ but retain the Privy Council as its final Court of

Appeal for a trial period, as I recall, of 5 years and then assess its performance. We

have now experienced twice that duration of time and have numerous published

judgments on which to make the assessment.

7.5 It has even been suggested that one reason for retaining the appeals to the Privy

Council is that foreign investors will have no confidence in the judicial system of the

Caribbean. However, there is no evidence to support this. In fact, the evidence is to

the contrary. Barbados and Guyana which acceded to the appellate jurisdiction of the

CCJ have had over this period of adherence, substantial increases in net inflows of

foreign direct investments.14 As we have seen from the cases on commercial law in

which the CCJ has adjudicated there is no evidence of such interests being unfairly

treated.

7.6 There have been voluminous complaints from commercial entities in the

Caribbean about restrictions imposed with respect to the freedom of movement of

14 See IMF, Balance of Payment Yearbook.

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goods and persons. There are significantly less complaints concerned with the

freedom of services and money. Although by virtue of the Revised Treaty of

Chaguaramas, the intermediary functions of the Competition Commission and the

original jurisdiction of the CCJ there is scope for seeking redress in respect of these

complaints, there is very little attention being paid to these possibilities. In this

jurisdiction the CCJ is empowered to make decisions with far-reaching commercial

and financial implications. Those who oppose access to the appellate jurisdiction of

the CCJ fail to appreciate that in its original jurisdiction it already has the potential to

make decisions with far-reaching implications for the economies of the participating

States as well as the livelihood of their citizens. I do not intend to analyse the

judgments delivered by the Court in its original jurisdiction but wish to point out the

illogicality of ignoring its importance in the debate concerning its appellate

jurisdiction. The Shanique Myrie Case [2013] CCJ 3(OJ), has gone a far way to alert

us to the potential value of the original jurisdiction.

7.8 In the preparation of this paper, I have been obliged to make a careful study of

the CCJ judgments particularly in the appellate jurisdiction. In my view they are

thorough and analytically sound, socially relevant without being insular, learned

without being pedantic, progressive while being appreciative of precedent, culturally

sensitive while appreciative of Commonwealth and international learning. Speaking

recently to a distinguished English Queen’s Counsel who has had much experience in

the House of Lords, the English Supreme Court and the Privy Council, he asked me

how were the discussions going in Jamaica with respect to our accession to the

appellate jurisdiction of the CCJ. I think I said it is at a stalemate. He responded that

he hoped Jamaica would delay the decision. I was taken aback as I had regarded him

as “liberal” in the true sense. He then added that “My reason is that while the Privy

Council remains as your final court of appeal, there is a potential source of income for

me, but I must confess that I have been reading the CCJ judgments and they are

excellent.” Enough said!!!

LLOYD G. BARNETT

MAY 23, 2015