Sandra seeks clarification on CCJ

The Chairman & Members
Steering Committee: CCJ 2018 Bill
c/o Ministry of Legal Affairs
H.A. Blaize Street, St. George’s

June 9th, 2018

Dear Sirs/Madam,

Re CCJ Bill 2018: Making the Agreement Establishing the CCJ a Constitutional Instrument

I take this opportunity to write to you in my individual capacity, as a citizen and member of the electorate – unschooled in law and legal interpretation – to offer (an) observation(s) and request clarification in respect of the Agreement to Establish the CCJ that will replace the Appeals to Privy Council Order via the proposed Constitution of Grenada (Caribbean Court of Justice and Renaming of the Supreme Court) (Amendment) Bill, 2018.

According to the Explanatory Note 8, the main purpose of the Bill is “to amend the Constitution of Grenada in order to enable accession to the CCJ as the final Court of Appeal instead of the Privy Council”.

1. Appeals to Privy Council Order to be replaced by Agreement Establishing the CCJ:

My understanding is that the Appeals to Privy Council Order is a constitutional instrument, entrenched within the Grenada’s Constitution. In order to facilitate Grenada’s accession to the Appellate Jurisdiction of the CCJ, it is therefore required that this instrument be replaced by the Agreement Establishing the Caribbean Court of Justice.

Based on my understanding of the proposed CCJ Bill 2018, it appears that this will be effected by:-

• PART II, Alteration of section 39 of the Constitution – where all references Appeals to Privy Council Order will be replaced by Agreement Establishing the CCJ.

• Part III of the CCJ Bill 2018, Repeal of the West Indies Associated States (Appeals to Privy Council Order)

1.1. Two Jurisdictions:

Explanatory Note 3 advises that the CCJ has two jurisdictions:-

• Original Jurisdiction: An Original Jurisdiction which is mainly responsible for determining disputes and issues in connection with the interpretation of the Treaty of Chaguaramas which seeks to establish a common economic space among CARICOM countries;

• Appellate Jurisdiction: which makes provisions for final appeals from regional courts to be made to the CCJ instead of to UK-based Privy Council.

It seems to me, therefore, that the Agreement to Establish the CCJ will become a constitutional instrument with application to both the Appellate Jurisdiction and the Original Jurisdiction

2. Constitutional Instrument vis-à-vis Original Jurisdiction:

It is my further understanding: –

• The Original Jurisdiction is already operational in all CARICOM countries, including Grenada. I assume, therefore that the Original
Jurisdiction has already been imported into domestic law. Permit me to enquire when was the Agreement ratified by Grenada?

• The decisions of the Court in in its Original Jurisdiction are final and cannot be appealed.

2.1. Commerce and Trade:

The Original Jurisdiction is primarily about economic integration and commerce and trade.

• Why is the Agreement with its provisions for the Original

Jurisdiction, being entrenched in the Constitution, the Supreme Law?

Whose purpose and interests will this serve? (I am aware that woman-in-the-street”, Shanique Myrie, was able to challenge the Government of Barbados and win but one also needs to look at Rudisa Beverages & Juices N.V. & Caribbean International Distributors Inc. vs. Government of Guyana to appreciate all aspects of the Original Jurisdiction).

• What are the implications of entrenching the Original Jurisdiction in the Constitution?

2.2. European Court of Justice:

The European Union provides the best example of economic integration.

It is useful to note that while the various treaties have been imported into their domestic law, countries of the European Union have not integrated the European Court of Justice – which interprets the law pertaining to the treaties of the European Union – into their
constitutions.

2.3. Red Herrings?

I have noted CCJ Bill 2018, Section 11 (b) (3) (b), Alteration of section 111 of the Constitution which advises that “references to the Caribbean Court of Justice are references to the Caribbean Court of Justice established under the Agreement Establishing the Caribbean Court of Justice in relation to the Appellate Jurisdiction of that Court established by clause (b) of paragraph 1 of Article III of that Agreement.”;

Permit me to observe, Members of the Steering Committee, that this insertion is reminiscent of the “red herrings” re the Name of State Bill and the Explanatory Memorandum definition of Grenada as being the public islands of Grenada, Carriacou and Petite Martinique.

3. Amendments to the Agreement Establishing the CCJ: I also seek your clarification on amendments to the Agreement Establishing the CCJ.
According to Article XXXII of the Agreement:-

• The Agreement may be amended by the Contracting Parties.

• Every amendment shall be subject to ratification by the Contracting Parties in accordance with their respective constitutional procedures ……………………..”

3.1. Queries:

• Two Jurisdictions: In the context of two jurisdictions, Original and Appellate, how is this applied practically, particularly since the Original Jurisdiction will also be constitutionally entrenched?

• Referendum: Section 39 (5) (c) of the Grenada constitution requires a referendum and the approval of two-thirds (67 percent) of the votes validly cast in order to effect amendments to a constitutional instrument.

• Insertion of New Section (5 A): Is the insertion of new section (5A) proposed by CCJ Bill 2018 Part II, Sect. 5.(e) proposing to take
away the currently entrenched constitutional rights of citizens to have a say in what changes are made to the constitutional instruments.

Thank you, Members of the Steering Committee, for the opportunity to offer the foregoing.

Sandra C.A. Ferguson

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