Will CCJ erode our rights?

THE EDITOR: The judgement of the Privy Council with respect to Jamaica’s accession to the CCJ, is one that has fundamental application to the validity of the setting up of the CCJ and the continued jurisdiction of the CCJ. The Privy Council agreed that the key question for determination is, whether the procedure adopted in enacting the Jamaica legislation for their accession to the CCJ, conformed with the requirements laid down in the Jamaica Constitution. The Appeal is of immense Constitutional importance, since it strikes at the modus operandi of haste and even a quotient of recklessness, by Heads of Government within the Caribbean Area to accomplish their stated objectives without mindful of the Rule of Law, that is, the limitation imposed upon them by their respective Constitutions.

This is notwithstanding, that the CCJ is to have both an Original and Appellate jurisdiction. With respect to the original jurisdiction, Mr Michael de la Bastide, former Chief Justice of Trinidad and Tobago was of the view that the continued validity of the Court rested upon the exercise of this jurisdiction. Indeed, what Mr de la Bastide signally overlooked was that the manner and form of a Constitution are conditions precedent, which must be observed for the CCJ to have original jurisdiction. Very simply, in Jamaica its people ought to consent and give legal effect to the CCJ. Both the Original and Appellate jurisdictions of the CCJ are prescribed in some detail in the Agreement and the Protocol, both of which were signed and subsequently ratified by a number of Caribbean states.

The Agreement of the CCJ acknowledges in its Preamble, the desirability of entrenching the CCJ in the National Constitutions of the Contracting States. It follows from this formulation that the manner and form of this legislation begged a wider question. This wider question is the due observance of conditions laid down in National Constitutions which must be observed. In like manner, in Trinidad and Tobago a Special Majority of both Houses of Parliament must be observed. The Opposition in Trinidad and Tobago has made it very clear, it would not support legislation to validate the CCJ without there being Constitutional Reform. It was pointed out in the Judgement in HINDS v THE QUEEN (1977) A C, that Lord Diplock stated that certain important assumptions underlie Constitutions drafted on what has been called the Westminster Model.

Admittedly, it is true that when the people of Jamaica adopted their Constitution as an Independent Nation in 1962, they made very significant departures from the Constitutional practice of the United Kingdom. That departure was that their Constitution shall prevail and the other Law shall, to the extent of its inconsistency be void. The consent of the people must first be obtained and not that of Parliament. It follows from the preceding that the Heads of Government ought to know what their limitations were. In spite of this, they proceeded with the CCJ, and today, all the Contracting States have wasted public funds which could have been avoided. Are we in the region experiencing an erosion of our sacrosanct rights under our respective National Constitutions!

DR SHASTRI MOONAN
Attorney