The CCJ – A new and vibrant court

by Lord Anthony Gifford 05.JAN.07

The Caribbean Court of Justice (CCJ) has handed down its first decision in the human rights field, in the case of Attorney-General v Jeffrey Joseph and Lennox Boyce. All seven judges of the court took part in the decision.

There were six separate judgments running to 179 pages. The judgments give a fascinating insight into the legal and humanitarian attitudes of the six men and one woman who comprised what may one day become our final court of appeal.{{more}}

The case was an appeal from Barbados. Joseph and Boyce had been two of four men who had brutally beaten a young man to death with pieces of wood. The prosecution had offered to accept pleas of guilty to manslaughter, and two of the accused agreed. They were sentenced to 12 years. Joseph and Boyce refused the offer, and were convicted of murder by the jury. They received the death sentence, which is mandatory in Barbados. This was in February 2001.

Their appeal to the Privy Council was based on the argument that the mandatory death sentence was unconstitutional. The Privy Council heard similar arguments at the same time from inmates in Jamaica and Trinidad & Tobago, and gave conflicting decisions, holding that in Jamaica the mandatory death sentence offended against the constitution, but in Barbados and T&T it did not. The difference is hard to justify in principle, but it arose from the different laws in each country. The decision was made in July 2004.

Joseph and Boyce then petitioned the Inter-American Commission on Human Rights, as was their right under the American Convention on Human Rights, which Barbados had ratified. But in September 2004, the Barbados Privy Council, ignoring the petition, recommended to the governor-general that the sentences should be executed.

Death warrants were read to the two men. Five days before their execution, they brought a constitutional motion claiming that their rights to life and to the protection of the law were being infringed. They succeeded before the Court of Appeal, and the attorney general appealed to the CCJ.

By June 2006, when the appeal was heard, the men’s lives were no longer in danger. More than five years had passed since their conviction, so that under the decision in Pratt and Morgan their sentences had to be commuted anyway. But because of the importance of the issues raised, the CCJ dealt fully with the case.

The main issue was whether the men had rights under a treaty (the American Convention) even though the treaty was not incorporated into the domestic law of Barbados. If they had, then the Barbados Privy Council should have awaited the outcome of the petition before they considered the case. The case of Lewis in the Privy Council supported their claim, but this decision had been much criticised and the CCJ was free to review it.

The judgments are imbued with scholarship and learning. Hundreds of cases from around the world were cited. Issues of great complexity were grappled with, including a number of contradictory judgments from the Privy Council. The majority of the judges ruled that the inmates had a legitimate expectation that the Convention would be observed in good faith by the Barbados authorities, so they dismissed the appeal.

The judges accepted the fundamental principle laid down in Pratt and Morgan, that a man should not be detained on death row for an inordinate time. But they recommended a relaxation of the rigidity of the five-year rule, saying that time should not run if the Inter-American Commission took more than 18 months to consider a petition.

The judges showed an impressive understanding of the international human rights culture in which we now live, but supported it by a deeper intellectual analysis than the Privy Council has sometimes shown. Justice de Wit, from the Netherlands Antilles, gave a judgment which was full of insights. He dealt eloquently with the argument that citizens could not enforce rights given by treaty.

He asked: “How can one tell a condemned man, in deadly earnestness, that he exists on two planes, and that, although he has a right to stay alive on the one plane, he will be hanged on the other?”

Madame Justice Bernard, like a modern Portia, said that the grant of mercy was “a matter to be determined in accordance with rules of fundamental justice”.

Justice Pollard was highly erudite, and had me reaching for the dictionary when he described a treaty as “synallagmatic” (it means ‘reciprocally binding’).

Justice de la Bastide, president of the Court, said in his judgment that the purpose of the CCJ was “to promote the development of a Caribbean jurisprudence”.

Justice de Wit said that “we are here not to follow but to lead”, and that “Caribbean constitutional law will majestically and inexorably unfold as it gradually advances from one case to another”.

This judgment gives us hope that the CCJ has made a good start on that advance, and that Jamaicans may have nothing to fear if our political parties agree to entrench this new and vibrant court in the Jamaican constitution.

Lord Anthony Gifford, QC, is an attorney-at-law. This article was republished from the Jamaica Observer.