ACCESSING THE APPELLATE JURISDICTION OF THE

CARIBBEAN COURT OF JUSTICE - THE BELIZE EXPERIENCE!

The 16th Sir Archibald Nedd Memorial Lecture

Presented by Eamon H. Courtenay SC

ecourtenay@courtenaycoye.com

The Grenada Trade Centre

Grand Anse, Grenada

26 April 2016

Introduction

Allow me to begin by offering my deepest thanks to

President Ruggles Ferguson and the Executive members of

the Grenada Bar Association for the very warm welcome and

excellent arrangements for my visit. Ruggles has fully

complied with his promise to provide me with the best

Grenadian hospitality on this visit.

I also wish to salute the Grenada Bar Association for

successfully organizing this distinguished lectures series.

The Association has been doing so for some two decades.

This is an impressive record of achievement. It also

demonstrates the Association’s commitment to faithfully

fulfilling its duty to provide public legal education to your

citizens.

It is an honour to have been invited to join the

impressive list of persons who have delivered previous

speeches in the lecture series. The list is a veritable

constellation of the region’s leaders. This lecture series is a

fitting tribute to the memory of Sir Archibald Nedd a

distinguished jurist who recognized and enforced human

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rights and constitutional rights long before it was fashionable

to do so. Lets hope that this evening’s encounter will live up

to the standard of those that went before.

Twenty years ago, a legendary Queen’s Counsel,

delivered the 1st Sir Archibald Nedd Lecture. The paper by J.

S. Archibald QC was titled: “Essentials for a West Indies

Supreme Court to replace the Judicial Committee of the Privy

Council as the final Appellate Court for Commonwealth

Caribbean States and Territories.”

Today, we know what those essentials are – there is

model legislation freely available and expertise abounds in

the region on the process to adhere to the Caribbean Court

of Justice. I suspect that the invitation extended to me was

prompted by my personal and professional experience

before the Court. But I cannot, and will not, deliver an

academic exposition on the nearly 20 cases that have so far

reached the CCJ from Belize. I don’t believe that this is the

occasion for an academic lecture.

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I am here as a citizen of the Caribbean Community. I

will speak from a deep commitment to regionalism.

Unapologetically and proudly, I speak as a supporter of the

Caribbean Court of Justice. We the people of the Caribbean

decided to live as a Community. We agreed to establish a

Single Market and Economy. We faithfully and solemnly

signed the Agreement Establishing the Caribbean Court of

Justice.

And so brothers and sisters of Grenada, Carriacou and

Petite Martinique, this is your year. Our common

commitment to a deeply integrated Region impels you to

seriously consider joining the CCJ.

PART I - The Caribbean Court of Justice

On Valentine’s Day in 2001, at a Heads of Government

meeting of CARICOM in Bridgetown, Barbados, Prime

Ministers and Presidents of Antigua & Barbuda, Barbados,

Belize, Grenada, Guyana, Jamaica, St Kitts & Nevis, St Lucia,

Suriname and Trinidad & Tobago signed the Agreement

Establishing the Caribbean Court of Justice. On the following

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day, the Prime Ministers of Dominica and St Vincent and the

Grenadines appended their signatures. The Agreement

entered into force when three countries deposited

Instruments of Ratification with the Secretary General of

CARICOM.1 However, the CCJ was not inaugurated until 16

April 2005, so that it was only last year that the Court

actually celebrated its historic 10th anniversary.

As we all know, the CCJ has original and appellate

jurisdictions. In so far as the original jurisdiction is

concerned, most CARICOM member states are subject the

Court’s compulsory jurisdiction. Grenada is subject to the

CCJ’s original jurisdiction when it comes to the enforcement

of the Revised Treaty of Chaguaramus. We therefore have

the rather anomalous situation, which is not unique to

Grenada, where the CCJ is recognized as a part of Grenada’s

judicial architecture for one purpose but not for appeals.

Tonight I want to share with you the interesting story of

how Belize accessed both the original and appellate

jurisdictions of the CCJ. Then I will take a look at what our

1 Agreement Art. XXXV

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experience has been like since we accessed the appellate

jurisdiction in 2010. And finally, I will take the liberty to

express some views on the proposed amendments to the

Grenada Constitution.

Belize and the CCJ

Partisan politics rules small Caribbean societies. Belize

is no different. Because of politics, and the divisiveness

which characterizes our politics, quite often the larger

national purpose is sacrificed. Belize’s history with the CCJ

was at one point victim to this phenomenon which I believe

is present across the region.

As mentioned earlier, Belize was proudly one of the

countries that signed the Agreement that established the

Court on Valentine’s Day in 2001. Thereafter, Belize

participated in the very important regional meetings that

planned and prepared the arrangements that were required

to make the Court functional. In other words, Belize played

an active part in the historic mission that was designed to

finally transfer judicial sovereignty to our indigenous Court,

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and also to deepen the integration movement by

establishing a court to finally resolve treaty disputes.

Once the regional requirements were nearing

completion, Belize moved to implement the legal and

constitutional measures needed to access the Court. On the

regional level, in 2003 and 2004 Barbados, St Lucia, St

Vincent, Suriname were taking the steps needed to

domesticate the CCJ. These moves were of course followed

by the very interesting Jamaican experience (a matter to

which I will later refer). Except for Barbados, where the

Government had the majority needed to amend the

Constitution and did so, the other territories were enacting

legislation to make the Court a part of local law, even though

they could not de-link from the Privy Council and move to

the CCJ in its appellate jurisdiction.

The First Foray – a bridge too far

Before the Court was inaugurated in 2005, Belize made

an unsuccessful attempt to de-link from the Judicial

Committee of the Privy Council and to ready itself for the

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advent of the CCJ. In 2004, two Bills were introduced in the

House of Representatives of Belize: a) the Belize Constitution

(Fifth Amendment) Bill, 2004, and b) the Caribbean Court of

Justice Bill, 2004.

One of the main objectives of the Fifth Amendment to

the Belize Constitution was to de-link from the Privy Council

and to provide for final appeals to the CCJ in civil and

criminal matters. However, for it to pass in the House of

Representatives, it needed to satisfy the requirements of

section 69 of the Belize Constitution.2 These are:

a. 90 days had to elapse between the first and second

reading of the Bill;

b. passage of the Bill had to be supported by not less

than three-fourth of all the members of the House;

and

c. When submitted to the Governor General, the Bill

had to be accompanied by a certificate certifying

compliance with the two other constitutional

requirements.

2 Cap. 4 of the Substantive Laws of Belize, Rev. Ed. 2011

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With respect to the CCJ Bill, which sought to

domesticate the Court in both its appellate and original

jurisdictions, to make the Agreement establishing the Court

a part of the local law and for matters related thereto, being

an ordinary Bill it merely required a simple majority to be

passed into law.

In 2004, the Government did not enjoy a three-fourths

majority in the House of Representatives. In order to pass

the Fifth Amendment and access the CCJ, the support of the

Opposition United Democratic Party was required.

The Government initiated consultations with the

Opposition quite early in the process. The Opposition

indicated that it would support the passage of the Bill.

Indeed in 1996 when the United Democratic Party was in

Government it had formally stated that it intended to

introduce legislation to de-link from the Privy Council.3 In the

event it did not. As part of its argument at the time, the UDP

said the de-linking “was clearly an issue of sovereignty.”

3 Channel 5 Television September 1996

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Again, in 2002, the UDP, then in Opposition, wrote to

the Government strongly advocating the abolition of appeals

to the Privy Council in criminal matters only. At this time the

CCJ had not yet been inaugurated although Belize had

signed the Agreement to establish the Court.

Two years later in 2004, the Government proposed the

Fifth Amendment to the Constitution. Surprisingly,

notwithstanding this history the UDP did not support the

amendment to the Constitution.

Making the Case

On Friday 16 July 2004, the House of Representatives

debated Caribbean Court of Justice Bill, 2004, not the Belize

Constitution (Fifth Amendment) Bill 2004. The debate was

robust.

The Hon. Godfrey Smith, the then Minister of Foreign

Affairs, led the charge in support of the Bill. He immediately

framed the debate within the regional context:

“So today, Madam Speaker, it is Belize’s turn and the people of Belize, through us, their duly elected representatives, will decide here today whether we,

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Belizeans, whether we as a country, wish to be a part of a historical regional movement and historic regional institution that will represent our evolution to full constitutional sovereignty. Indeed, Madam Speaker, I can say that the eyes of the entire Caribbean Community are upon us. The eyes of the region are upon us. Our decision today is important, not only [for] the success and vitality and vigour of the operation of the court, but, indeed, for the future of the entire regional movement.”4

The Minister was in no doubt as to the importance of

the mission the House had embarked upon. He said:

“… the Caribbean Court of Justice is of supreme significance both to Belize and to the region. Madam Speaker, we are fully appreciative and cognizant of the fact that no innovation of this nature, or, indeed, revolution of this kind comes easily. And I believe that, not only do we have a historical duty to and obligation to this National Assembly, but we do also to Belize and the region to leave no doubt in anybody’s mind that we are absolutely, on this side, convinced of the correctness of our course of action.”5

4 House of Representatives debate 16 July 2004 5 House of Representatives debate 16 July 2004

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He then presented a detailed historical resumè of the

regional efforts leading to the establishment of the Court and

then deployed five separate reasons in support of the

passage of the Bill. Whilst none of them will surprise you, it

is important to capture them succinctly.

First, he said “I count among the most formidable

arguments in favour of the Caribbean Court of Justice, the

issue of sovereignty and independence.”6 He then argued in

favour of the CSME “Without the Caribbean Court of Justice,

we will … seriously compromise and jeopardise the future of

the single market and economy.”7 The third argument

advanced was “… that the establishment of the Caribbean

Court of Justice will mean fuller access [to justice], not only

for Belizeans, but for the people of the region.”8 Next, he

argued in favour of the development of “a Caribbean

jurisprudence” by the Court. In his view, by replacing the

Privy Council with the CCJ “… it will be left to our own local

jurists to craft reasoning, to craft decisions more in line with

6 House of Representatives debate 16 July 2004 7 House of Representatives debate 16 July 2004 8 House of Representatives debate 16 July 2004

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our regional culture, more in line with our social mores and

social thinking, Madam Speaker.”9 The Foreign Minister then

cited statistics that showed that the level of awareness and

support for the CCJ was “as high as 72% and 80%”

respectively10. After presenting these five reasons in support

of the Court and passage of the Bill, he responded to several

concerns which he was aware of and which he felt had been

legitimately raised.

The concerns were: a) possibility of political

interference with judges of the Caribbean Court of Justice; b)

the possible lack of financial independence of the Court; c)

would the judges would be of a sufficiently high calibre; and,

d) why was money being spent of a regional institution

instead of improving the local justice system. He then

provided comprehensive explanations seeking to allay the

fears of those who raised these concerns.

Persuasive though the arguments were, they did not

carry the day.

9 House of Representatives debate 16 July 200410 House of Representatives debate 16 July 2004

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Yes to the No – Parochial Politics Prevail

The Opposition did not support the passage of the

Caribbean Court of Justice Bill, 2004. They advanced four

separate reasons to justify their no vote.

To be fair, the UDP insisted that, in principle, it

supported the CCJ. But in order to garner its support in the

House of Representatives, the Opposition insisted that the

Government satisfy certain conditions. The Opposition

framed its position in this way:

“At a meeting of the its National Party Council on Saturday June 26, 2004, the United Democratic Party agreed in principle to support the Caribbean Court of Justice and the Belize Constitution (Fifth Amendment) Bill. The Party feels that the CCJ could be a good thing. A bid for regional advance should be matched by local progress and systemic reform. Otherwise overall domestic frustration might render the Caribbean Court of Final Appeal almost pointless.”11

In the debate in the House of Representatives, an Opposition

representative put it more starkly:

“They are asking us, Madam Speaker, to treat this issue of the Caribbean Court of Justice on its own merits….

11 Letter dated 28 June 2004 from Hon Dean Barrow, Leader of the Opposition to Prime Minister Hon Said Musa

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We cannot separate the Caribbean Court of Justice from the suffering that our people are experiencing out there.”12

In simple terms, the Opposition demanded compliance

with certain domestic requirements as condition for

supporting the Fifth Amendment. What were the conditions?

The first demand from the Opposition was for an

amendment to the Constitution to insert a ceiling for the

national debt. The Government rejected this on the basis

that placing a limit on the public debt was not a measure fit

for insertion into the Belize Constitution.

The Opposition stressed good governance. They called

for an amendment to the Finance and Audit Act that would

require the Government to “bring loans in excess of $10

million to the National Assembly for ratification.”13

The next request of the UDP Opposition was

transparency. It had been clamouring for public disclosure of

government contracts including contracts with Print Belize

Limited, Belize Telecommunications Limited and Jeffrey

12 Hon. John Salidvar, House of Representatives debate 16 July 200413 Hon. Patrick Faber, House of Representatives debate 16 July 2004

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Prosser, an exclusive contract between Royal Caribbean and

Government, and concession agreements for the airport and

the seaport. To this end, the Opposition demanded an

amendment to the Freedom of Information Act to enable “a

person to make a request to the Contractor General for

information in respect of a government procurement or sale

contract of or above the value of US$1 million of BZ$2

million. The Contractor General shall in pursuant [sic] of a

request … provide the person … a written summary of

essential elements of the contract.”14 The request was

unrequited. I will return to this point later on in this

presentation.

The Opposition turned next to the disposal of public

assets by the Government. Specifically, their ask was “in

terms of public assets, … [disposal of] public assets valued

at over $2 million would be brought to the House before they

are sold off for approval.”15 Again, this is an issue to which I

will return later on.

14Hon. Patrick Faber, House of Representatives debate 16 July 2004 15Hon. Patrick Faber, House of Representatives debate 16 July 2004

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Fourthly, the Opposition demanded parliamentary

reform. They insisted that the Standing Orders for the House

of Representatives be amended to enable, two instead of

three members of the Standing Committees to convene a

meeting on an urgent matter. And the Opposition requested

an increase in the amount of the community vote for all

members of the House of Representatives.

The Government’s riposte to these several demands

was hell no! The Hon Francis Fonseca, the Minister of

Education put it graphically:

“And what’s troubling is why the UDP is saying no to the CCJ. Madam Speaker, no, their arguments are not about costs or concerns, about political influence or the competence of regional judges, none of that. … Rather, they said to themselves – the PUP needs our vote for this CCJ to happen – so we need to get something for this to happen, plain outright, unapologetic political extortion. Not to further the national interest, but to further the agenda of a few small-minded, petty, very angry out of control UDPs.”16

16House of Representatives debate 16 July 2004

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In this poisoned atmosphere, the question was put and

a division called. The vote was strictly along party lines – 21

PUP 8 UDP. So the ayes had it. But the victory was pyrrhic!

Whilst the Caribbean Court of Justice Bill 2004 passed

recognizing the original jurisdiction only, the Government,

lacking the three-fourths majority required to alter the

Constitution, immediately announced that “owing to the lack

of vision expressed on the other side the Government will

not be proceeding with the Belize Constitution (Fifth

Amendment) Bill 2004 at this time.”17 How then did Belize

accede to the appellate jurisdiction of the CCJ?

‘Once more unto the breach’

General elections were held in Belize February 2008

and the United Democratic Party under Prime Minister Dean

Barrow was ushered into office in a landslide. The UDP won

25 of the 31 seats thereby gaining an eighty percent

majority – a super majority conferring on them the power to

alter the Constitution without the support of the Opposition.

17 Hon Godfrey Smith, House of Representatives debate 16 July 2004

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On the 1st April 2010, the Belize Constitution

(Seventh Amendment) Act was enacted which, inter alia,

removed the Privy Council as the final appellate court for

Belize and replaced it with the Caribbean Court of Justice.

The debate on the Bill was anti-climactic in so far as the

CCJ was concerned. It was referred to merely in passing

because other more controversial provisions in the Bill

overshadowed the CCJ provisions. In fact, only five of the 31

parliamentarians joined the debate on the Bill. Additionally,

the People’s United Party, which was now in opposition, had

not changed its support for the CCJ in its full remit. Therefore

the issue on the debate was not well and truly joined.

The Court was inaugurated in April 2005; it took five

years before Belize acceded to the Court’s appellate

jurisdiction. A delay attributed exclusively to parochial

politics. But you know what, we got there!

I now turn to some comments on the experience since

Belize actually accessed the Caribbean Court of Justice.

The Original Jurisdiction

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So far, there has only been one case from Belize in the

original jurisdiction, Tomlinson v Belize.18 In this case, the

Applicant has challenged section 5 of the Immigration Act

which defines homosexuals as prohibited immigrants

thereby authorizing immigration officers to refuse entry to

homosexuals. Tomlinson has asserted that “the very

existence of the impugned Immigration Acts constitutes

prejudice, whether or not the governments of these States

have in the past applied or intend in the future to apply the

prohibition by refusing entry to homosexuals.”19 This case

has been fully argued and judgment is awaited.

The Appellate Jurisdiction - An Enriching Experience

a. Access: video conferencing; itinerant; special leave

It is right that I state the obvious, because I say it based

on experience. The CCJ is decidedly more accessible to

litigants and to attorneys-at-law. There is a fully staffed

professional registry that responds timeously, and is

18 [2014] CCJ 2 (OJ)19 Ibid @ [5]

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understanding of the practice of litigation. The difference

with the Privy Council, is that that type of access is reserved

for London-based solicitors and not to us practitioners in the

Caribbean.

Do not underestimate the value of video hearings. I

have participated in many. The point is that the Court is

available, even without physically leaving your jurisdiction.

This is important for litigants – they can attend case

management conferences, applications and actual appeals

at an affordable cost. Whilst Port of Spain may be ‘a hop

away’ from St George’s, it is a hop and a skip and a jump

away from Belize.

The Court has sat in each Barbados and Guyana; and in

Jamaica in the Myrie Case – an original jurisdiction case. In

May 2015, the CCJ sat in Belize for a week and heard cases

from Belize and other jurisdictions.

Special Leave

The CCJ has construed the relevant legislation of

Barbados, Guyana and Belize to mean that even where a

party has a right of appeal from the Court of Appeal to the

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CCJ as of right, an application can be made directly to the

CCJ for special leave.20 I bring this up at this point simply to

underscore that one benefit of this interpretation is that in

appropriate cases the two-stage process of applying for

provisional leave and then final leave, attendant with the

inevitable delay, may be avoided by having direct access to

the CCJ.

b. Irony – Marin & Coye & BCB Holdings

The first judgment from the CCJ in a case from Belize

was in 2011 and was about misfeasance in public office. In

essence, the question was whether the Attorney General

could maintain a claim against two former ministers of

government alleging that during their respective terms of

ministerial office, they arranged the transfer of 56 parcels of

State land to a company beneficially owned and/or

controlled by one of them. It was contended that this was

done at a gross undervalue, without lawful authority and in

bad faith. The issue on appeal was whether the AG could

20 Barbados Rediffusion Service Limited v Mirchandani (2005) CCJ 1 (AJ); Griffith v Guyana Revenue Authority [2006] CCJ 1 (AJ); Christopher Salt et al v Kaupthing Singer & Friedlander Limited [2016] CCJ 8 (AJ)

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maintain the claim against, as it were, former officers of the

government?

It is ironic that the first judgment from the CCJ would be

in a case in which the Government sought to recover

damages against former ministers of government21. Ironic

because one of the conditions that the Opposition had asked

for back in 2004 in exchange for its support of the Fifth

Amendment to the Constitution, was legislation that would

have required the Government to bring to the National

Assembly a resolution authorizing disposal of public assets.

The parcels of land in question were sold by the State

between December 2007 and February 2008 considerably

after the House debate.

By a 3-2 majority the CCJ held that the AG was

competent to bring the Claim. This was a precedent setting

decision.

“I concede that an action of the kind initiated by the Attorney General in this case is to all intents and purposes unprecedented and that from one perspective centuries of forensic thought and assumptions could be

21 Marin & Coye v The Attorney General of Belize [2011] CCJ 9. The former ministers prevailed at trial.

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taken to lean against his proceeding. I equally admit that to allow this suit could have significant implications for the role of the State in the law of torts. To recognize competence in the Attorney General to bring this suit naturally raises the prospect of the Crown suing, possibly as parens patriae, in a host of other torts including trespass, nuisance and negligence. However these are matters for another day. What to my mind is presently obvious is that none of these concessions can be a sufficient reason to deny the logic of the developments in the tort of misfeasance in public office which have in this case converged with the evolution of the corporate nature of the State in the law of torts. To the contrary these developments may well portend the welcome emergence of a new matrix of causes of action hitherto frozen in their historical crypts and now animated by judicial imprimatur.”22

This is but one case in which the judges of the CCJ have

answered the questions posed by Hon Dr. Kenny Anthony,

Prime Minister of St Lucia in the 5th Sir Archibald Nedd

Lecture: “So the opportunity to finally shape our own

jurisprudence … is immediate and compelling. But will it

happen? Will the reshaping of our jurisprudence take place? 22  Marin & Coye v The Attorney General of Belize [2011] CCJ 9 per Anderson JCCJ @ [152]

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Will our jurists and practitioners and academics take up the

challenge?”23 The answer is a resounding yes!

In a different case in 2013, international arbitrators had

awarded substantial damages against the Government of

Belize in favour two companies which sought enforcement of

the Final Award. the case reached the CCJ where

enforcement was refused.

The CCJ was called upon to answer the following

question: whether it would be contrary to public policy to

enforce an arbitration award which arose from a confidential

agreement that “construct[ed] in careful detail a special tax

regime reserved for the Companies; a regime that all parties

readily acknowledge is at variance with the extant revenue

laws of Belize and one which conferred significant benefits

on the Companies.”24 In reaching its decision the Court said:

“Prime Ministerial governance, a paucity of checks and balances to restrain an overweening Executive, these are malignant tumours that eat away at democracy. No

23 See also Juanita Lucas, Celia Carillo v The Chief Education Officer et al [2015] CCJ 6 (AJ) in a tightly contested 3:2 decision, the CCJ gave anxious consideration to whether there was a breach of the right to the protection of law and what should be the appropriate remedy in such circumstances.24 BCB Holdings Limited & Anor v The Attorney General of Belize [2013] CCJ 5 (AJ)[34]

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court can afford to encourage the spread of such cancer. In our judgment, implementation of the provisions of the Deed, without legislative approval and without the intention on the part of its makers to seek such approval, is indeed repugnant to the established legal order of Belize. In a purely domestic setting, we would have regarded as unconstitutional, void and completely contrary to public policy any attempt to implement this Agreement.”25

Déjà vu! In 2004, one of the planks on which the

Opposition justified its refusal to support the CCJ was a call

for legislation that allowed disclosure of contracts, such as

this one, that were executed by the Government in strict

confidence and without legislative approval. The confidential

agreement in question was signed in 2005, after the 2004

debate, and was only publicly disseminated after the

Government changed in 2008!

These cases send a loud and clear message to

politicians, and more importantly to Caribbean people across

the Region – the CCJ is alive to transparency and

accountability in public affairs.

25 BCB Holdings Limited et al v The Attorney General of Belize [2013] CCJ 5 (AJ) [53]

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c. Respectful of the Court of Appeal – Boyce; August

I have expressed the view that one of the hallmarks of the

CCJ is accessibility, but the Court has also exercised restraint

and respect for the lower courts in Belize.

In one case, the Applicants successfully challenged two

nationalizations by the Government before the Court of

Appeal. The Court of Appeal having granted declarations of

unconstitutionality did not issue any consequential orders for

the return of the property. The Government declined to

return the property. The successful Appellants, being unable

to get emergency relief from the Court of Appeal, applied to

the CCJ to challenge the failure of the Court of Appeal to

grant consequential relief and sought orders from the CCJ

that would enable them to recover their property. Shortly

after the application was filed and pending before the CCJ,

the Government renationalized the property pursuant to new

legislation that sought to cure the defects identified by the

Court of Appeal when it struck down the acquiring

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legislation. The Applicants filed a fresh challenge to the 2011

legislation in the Belize Supreme Court.

At the CCJ level, the Appellants argued that the CCJ had

jurisdiction to consider and declare void the new legislation

that had re-nationalized the property without the Appellants

having to await the outcome of the new Supreme Court

cases. When the matter came before the CCJ for case

management, special leave having been earlier granted, the

Court stayed the Appeal. It stated:

“22. Without delving into and thus commenting one way or another on the issue of whether we possess jurisdiction to do what the Appellants have asked of us, we are prepared to agree with the Appellants that fundamentally, the decision to stay or not stay these appeals is a matter of judicial policy. The operation of that policy requires us to have full regard to the nature of the legal and constitutional challenge being made to the 2011 legislation…. Against that background, we consider that before this Court rules on the challenge it would be more appropriate first to hear the views of the courts below. The circumstance that, as compared with the London based Privy Council, it cannot be said either that we are ‘a distant court‘ or that we lack ‘familiarity

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with local conditions’ is quite beside the point. The views of the judges below in the light of the continuous refinement of counsel’s submissions as the case progresses through the system as well as any learned comment in academic journals are not to be discounted. These opinions constitute vital material helping to inform and shape the views of a final court….”26

In the first criminal appeal from Belize to the CCJ, the

Court again adopted this policy of judicial restraint and a

desire to have the benefit of the views of the Belizean lower

courts before hearing an appeal.27 The Appellant, in addition

to challenging his conviction which was confirmed by the

Court of Appeal, raised in his CCJ Notice of Appeal the

constitutionality of the mandatory sentence of life

imprisonment without the possibility of parole.

Deferentially, the CCJ has stayed the appeal and

remitted it to the Court of Appeal for it to give its views on

the constitutionality of the sentence – the decision of the

Court of Appeal is pending.26 Boyce and British Caribbean Bank Ltd v AG of Belize & Anor [2012] CCJ 1 (AJ) (R) @ [24]27 Gregory August v The Queen BZCR2015/001

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d. Flexibility – Maya Leaders/BCB and Boyce and Fortis

The final point I wish to make regarding the CCJ and the

practice as developed by Belizean cases, is that of the

Court’s flexibility in dealing with major cases. I cite two

examples.

The nationalization cases, which I mentioned earlier,

raised some of the most important constitutional law issues

ever argued before the Court. These included whether the

Basic Structure Doctrine applied in Belize, whether the

Legislature’s power to alter the Constitution was subject to

any limitation other than the manner and form requirements

set out in section 69 of the Belize Constitution, and can an

amendment to the Constitution be inconsistent with another

section of the Constitution (especially a fundamental right

provision) and still be valid. After full argument, and whilst

awaiting the Court’s decision, the Government and the

former property owners settled their differences. But, the

settlement was pursuant to agreements which required the

Government to complete certain actions, therefore the

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parties jointly sought Tomlin Orders from the Court. The

Court granted the Orders. The Orders enable the former

property owners to go back to the CCJ directly to enforce the

terms of the settlement if needs be. Whilst the differences

have been finally settled, the Court does retain limited

jurisdiction over the parties.

Interestingly, the Bar Association applied to the CCJ to

hand down its decision notwithstanding the settlement of the

parties in order to clarify the major constitutional law issues

that had been ventilated; this was refused.

In the Maya Land Rights case, in which the Court of

Appeal held and the CCJ confirmed “that Maya customary

land tenure exists in the Maya villages in the Toledo District

and gives rise to collective and individual property rights

within the meaning of section 3(d) and 17 of the

Constitution.” At the request of the parties, the CCJ issued a

Consent Order accepting “the undertaking of the

Government to adopt affirmative measures to identify and

protect the rights of the Appellants arising from Maya

customary tenure, in conformity with the constitutional

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protection of property and non-discrimination….” In order to

achieve these and the other orders of the Court, “the Court

retains jurisdiction to oversee compliance with this Order

and sets 30th April 2016 for reporting by the parties.” 28 The

CCJ continues to actively oversee this case.

I would contend that these two examples reveal the

CCJ’s unique sensitivity to local circumstances. And they give

life to “The overriding objective of [the CCJ’s] Rules … to

ensure that the Court is accessible, fair and efficient and that

unnecessary disputes over procedural matters are

discouraged.”29

I conclude this part of my presentation by quoting from

Sir Dennis Byron, who reviewed cases from Belize in a

speech in 2015 and concluded: “As the Court approaches its

10th Anniversary I am confident that we will continue

assiduously to develop a rich vein of Caribbean

jurisprudence.”30

28 The Maya Leaders Alliance etal v. The Attorney General of Belize [2015] CCJ 15 (AJ) @ [9]29 Rule 1.3 Caribbean Court of Justice Appellate Jurisdiction Rules 2015 30 A paper presented at the Bar Association of Belize Law Conference 2015, January 15 2015.

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PART II

Grenada is currently engaged in a very interesting

process of constitutional reform. This process is the highest

and most solemn expression of the constituent power of the

people.

The Grenada Constitution provides in section 39 for a

referendum to be passed to amend the most significant

sections of the Constitution – this is without doubt a

celebration of the constituent power of the people. The need

for a two-thirds vote in the House of Representatives also

signals that the framers of the Constitution intended to

delegate power to amend the Constitution to the House of

Representatives, but this power could only be exercised by a

special majority of the people’s representatives.

From what I have observed, the consultation process

undertaken so far, seeks to build the necessary national

consensus which is absolutely required for the legitimacy of

this process. There should be no mistake as to the

significance of this process, or any underestimation of the

power of the people. The power to undertake such

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fundamental reform of the Grenadian Constitution rests

exclusively with the citizens of Grenada, Carriacou and Petite

Martinique. In recognizing the importance of the constituent

power of the people in the process of constitutional reform,

the High Court of Kenya said (paraphrasing):

“With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgment that in a democracy, and [Grenada] is one, the people are sovereign. The sovereignty of the [State] is the sovereignty of its people. The [State] is its people, not its mountains, rivers, plains, its flora and fauna or other things and resources within its territory. All Governmental power and authority is exercised on behalf of the people. The second stop is the recognition that the sovereignty of the people necessarily betokens that they have a constituent power - the power to constitute and/or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution.”31

31 Njoya et. al. v. Attorney General et.al.[2004] LLR 1, @ p. 12

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And so tonight I say to the people of Grenada you have

the power! As you continue this process remember your

history. In just over forty years you have lived the evolution

from colony to independent state. You have experienced the

revolution which interrupted the Westminster constitutional

order. And you witnessed the counter-revolution that re-

established the present constitutional regime. I urge you to

draw on this unique and rich constitutional history to

examine the proposed amendments to the Constitution.

Examine them critically; and ask the important questions:

Will these changes promote “the ideal of free men [and women] enjoying freedom from fear and want?”

Will they create conditions “whereby everyone enjoys economic, social, and political civil and cultural rights?”

Do the changes truly “respect the rule of law?”

Because it is the Preamble to the Constitution that says that

Grenadians “desire that their Constitution should reflect

[these] … principles and beliefs which represents those high

ideals on which the nation is founded.”

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There are several of the proposals that merit comment.

But in the interest of time I will confine my comments to

three of the proposals.

Caveat

I have no intention to delve into the political debate

surrounding the proposed amendments. My comments are

personal observations and not intended to influence the

debate in any way. I want to say quite specifically that

nothing that I say should be regarded as criticism or should

be used to justify a vote one way or the other in the

referendum.

Supreme Law Clause

Firstly, the Supreme Law Clause. You propose to move

it up to a more prominent place in the Constitution, and

rightly so. But what does the section really mean? It states:

“if any other law” is inconsistent with the Constitution then

“this Constitution shall apply, and the other law shall, to the

extent of the inconsistency, be void.” But can an

amendment to the Constitution be “a law” for the purposes

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of this section? What do I mean? If the Legislature passes an

amendment to the Constitution that appears to be

inconsistent with another section of the Constitution, which

prevails, or do they co-exist? This is not far-fetched, and the

legal answer to the question remains unsettled.

I had earlier referred to the nationalization cases in

Belize. The Government had nationalized the main telephone

company, a bank loan and the main electricity company.

Pursuant to sections 3(d) and 17 of the Belize Constitution,

the property owners were entitled to challenge the

nationalization itself as well as to challenge the amount of

compensation offered by the Government. They did so and

succeeded at the Court of Appeal in June 2011. The

Government re-nationalized the companies and the owners

launched a second challenge.

Whilst the cases were wending through the Courts, the

Government passed the Belize Constitution (Eighth

Amendment) Act to essentially provide the following:

adding a new Part XII to the Constitution (sections 143-145), thereby purporting to enshrine in the Constitution

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a requirement for majority Government ownership of "public utilities";

declaring that the acquisition of the property under the 2011 Act and Order were for a "public purpose";

excluding from the words “other law” appearing in section 2 of the Constitution, any law that alters the Constitution; and

adding the following declaration to section 69 of the Constitution: "there is no limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution". It must be readily apparent that these amendments

presented the property owners with an incredible array of

legal obstacles established at the constitutional level.

In anticipation of a challenge to these amendments to

the Constitution, the Supreme Law Clause was amended to

state that “other law” appearing therein does not include a

law to alter any of the provisions of the Constitution. This

was obviously designed to force the Courts to conclude that

an amendment to the Constitution could not be struck down

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for being inconsistent with the Supreme Law Clause.

According to the Prime Minister:

"The whole purpose of putting control of the utilities into the Constitution is to make that control unassailable. But Lord Ashcroft, for one, is already seeking in the Caribbean Court of Justice to prevent the very passage of the amendment to constitutionalise the control. To allow him, even after passage, the ability to have a Court strike down the amendment, would be truly to frustrate the sovereign will of the Belizean people.”32

Again, as mentioned earlier, these heavily contested

appeals were settled before the CCJ handed down its

judgment on this vitally important issue. At the level of the

Court of Appeal, however, the Eighth Amendment was

declared valid by a majority decision with Mendes JA (as he

then was) writing a powerful dissent.33 However, the Court

was unanimously of the opinion that the amendment to the

Supreme Law Clause was constitutionally compliant.32 Open Letter dated 15 August 201133 The Attorney General of Belize & The Minister of Public Utilities v The British Caribbean Bank Limited; The Attorney General of Belize & The Minister of Public Utilities v Dean Boyce & Trustees of the BTL Employees Trust; Fortis Energy International (Belize) Inc v The Attorney General of Belize & The Minister of Public Utilities

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So I leave this with you as food for thought: can the

Grenada High Court strike down an amendment to the

Constitution relying on the Supreme Law Clause? More

controversially, what power would the High Court have if a

government inserted into the Grenada Constitution an

amendment equivalent to the “John Derek Knight Assets

(Vesting in Government) Law 1979”? Could that amendment

be challenged by reliance on the Supreme Law Clause?

Further, would such a law sit compatibly with section 6 of the

Grenada Constitution? What if they are on their face

inconsistent?

This is not far-fetched. We have seen Governments in

our Caribbean Community being actuated by political and

personal motives using the powers of the State to directly

take the private property of individuals. And in doing so, they

go to great lengths to advance their objective and our Courts

continue to grapple with these challenges. I commend to you

the dissenting Judgment of Wit JCCJ in Lucas and another v

Chief Education Officer and others where he calls on

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judges and counsel to assist the Court in developing the

common law to meet the exigencies of new scenarios.34

Directive Principles

Indubitably, the addition of the Directive Principles of

State Policy reflects a healthy maturation of Grenadian

society. One can expect that those to whom they apply will

regard them as weighing heavily on them and informing and

influencing their actions and the performance of their

functions.

The draft clause provides that they are not legally

enforceable like they are in some other constitutions. This

clearly begs the question: why not? The answer is not for me

to say.

Tonight, I am more interested in the legal effect of their

inclusion in the Constitution. It would seem to me that the

Directive Principles of State Policy although not legally

enforceable, per se, are quite likely to have legal

consequences. According to the proposed clause 18N, “… it

is the duty of the organs of the state … to be guided in the 34 [2015] CCJ 6 (AJ)

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discharge of their functions by the principles … for these are

directive principles of state policy.” What is intended by this?

Can a claim be brought by an aggrieved person against

a public officer for failing to perform his/her duty to be

guided, or sufficiently guided by one of the Fundamental

Directives when taking a decision? Can a decision be

judicially reviewed on the basis that it was taken without

sufficient regard for a particular Fundamental Directive? I

pose these questions to highlight the urgent need to educate

public officers (used in the widest possible sense) specifically

and the public generally as to the role of these Fundamental

Directives in order that they can be given life.

Caribbean Court of Justice

Let’s return to the main topic of this evening – the CCJ. I am

not au fait with the prevailing attitude of the good people of Grenada

towards the CCJ. But my research reveals that between 1847 and the

present – some 169 years – the Privy Council has only handed down

twenty-one judgments by in cases coming from Grenada. That is, in my

view, proof positive that access to the Privy Council by Grenadians is

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quite illusory. If there was any compelling reason to reconsider the link

to the Judicial Committee – lack of access is a powerful reason for the

people of Grenada.

I urge the insertion a clause which provides that the CCJ “shall, in

relation to any appeal to it in any case, have all the jurisdiction and

powers possessed in relation to the case by the Court of Appeal.”35 A

similar section appears in section 11(6) of the Caribbean Court of

Justice Act of Guyana. It was relied upon by the CCJ to add a party to a

claim at the level of the CCJ.36 There is no good reason why it should not

be in the Grenadian Constitution which is actually establishing the

jurisdiction on the CCJ.

Next, I suggest that it is vitally important to fully set out the status

and jurisdiction of the appellate jurisdiction of the CCJ in the

Constitution. Whilst it is established by an Agreement, the appellate

jurisdiction to be exercised by the Court in Grenada will be as is

expressed in the Constitution. There should be no room for doubt as to

the ability of the CCJ to exercise inherent jurisdiction of a superior court

of record. Therefore, I propose the addition of a clause that says: “In the

exercise of its appellate jurisdiction, the Caribbean Court of Justice is a

35 Belize Constitution s. 104(5)36 Sheermohamed v S.A. Nabi and Sons Limited [2011] CCJ 7 (AJ)

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superior court of record for Grenada, with such jurisdictions and powers

as are conferred on it by the Agreement or this Constitution or any other

law.”37 The last four words are important as they are wide enough to

enable the Court to exercise the common law and to exercise its

inherent jurisdiction.

Finally, a curious silence. The proposed draft does not make

provision for the Original Jurisdiction of the CCJ. I find it difficult to

comprehend a court having exclusive and compulsory jurisdiction for

Grenada that is not expressly conferred with jurisdiction by the

Constitution. Secondly, the proposed draft amendments do not mention

a right of appeal as of right from final decisions of the Court of Appeal in

criminal matters.

Strangely, both these deficiencies exist in Belize as well so they

are by no means fatal to Grenada’s accession to the appellate

jurisdiction. But they are expressly provided for in the Barbados

Constitution. It seems to me that the Barbados model is to be preferred,

on these two specific issues.

Conclusion

37 Belize Constitution s. 104(6)

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What then of Belize and the CCJ? Hon. Sir Manuel Sosa, President

of the Belize Court of Appeal captured the reality: “It is a new kind of

relationship, vibrant and promising, of which we had no concept during

the previous history of Belize’s legal history.”38 I wholeheartedly and

respectfully agree.

The CCJ – it is ours, we made it, we work it, we developed it, we

own it, dah fi we court! From the perspective of Belize, on the western

fringe of the Caribbean space, we find it difficult to accept the hesitancy

in parts of the Community to take the historic step to finally and fully

embrace the CCJ. I have shown that politics delayed but did not derail

the process in Belize. We have seen the attempt in Jamaica thwarted by

controversial Privy Council Judgment and the continuing delay because

of local politics. This is interesting as the current Government has

proposed moving to a republic, but has insisted on a referendum before

joining the appellate jurisdiction. The Jamaica situation is rather

curious. In St Vincent there was the referendum with the result that the

proposed accession to the appellate jurisdiction of the CCJ failed. We

38 “On Board with the CCJ: An Overview of the Belizean Experience thus Far” Presentation to the students of the Faculty of Law, St Augustine Campus, Trinidad & Tobago, February 25, 2015

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have seen the stirrings in Antigua & Barbuda and in St Lucia. The winds

of change are blowing.

Grenada I close by paraphrasing from the debate in the Belize

House of Representatives in 2004:

“… the eyes of the entire Caribbean Community are upon [you]. The

eyes of the region are upon [you]. [Your] decision [in a few weeks] is

important, not only [for] the success and vitality and vigour of the

operation of the court, but, indeed, for the future of the entire

regional movement.”

Carpe Diem!

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