by Sandra Ferguson
The following is a citizen’s contribution to public awareness/public education re the above-referenced bill on which electors will be called upon to vote in the 6 November Referendum. It is not the work of someone trained in law or having any legal expertise. The author apologises and accepts responsibility for any errors which the article may contain.
- Agreement Establishing the Caribbean Court of Justice:
- Via agreement of 14 February 2001, Agreement Establishing the Caribbean Court of Justice the Caricom Heads of Government established the Caribbean Court of Justice.
- The agreement provides for two jurisdictions of the CCJ – an original jurisdiction and an appellate jurisdiction.
1.1 Original Jurisdiction:
- International Court: In its Original Jurisdiction, the CCJ is an international court which has “compulsory and exclusive jurisdiction to hear and determine disputes” concerning the application of the Revised Treaty of Chaguaramas which brought into being the Caricom Single Market and Economy (CSME).
- Decisions Final: The decisions of the CCJ in its Original Jurisdiction are final.
- Replacing the Privy Council: The Agreement also contains provisions to make the CCJ the final Court of Appeal of the Caricom member countries which have the Privy Council as their final Court of Appeal.
- Constitutional Amendments: In order to effect the required, constitutional changes to replace the Privy Council with the Caribbean Court of Justice as its final Court of Appeal, amendments to the constitution are required.
- Referendum Required: In the case of Grenada, a constitutional change requires, in addition to Parliamentary approval, approval by referendum. The proposed change must receive the support of two-thirds of the persons who vote in the referendum.
- Constitution of Grenada (Caribbean Court of Justice and Renaming of Supreme Court) Amendment Bill 2018:
- Accession to the Appellate Jurisdiction of the CCJ: The Bill proposes constitutional amendments to give effect to the CCJ as Grenada’s court of final appeal, discontinuing appeals to the Privy Council.
- Eastern Caribbean Supreme Court: It also proposes amendments which will effect corrections to the name of the Supreme Court Eastern Caribbean Supreme Court will replace any reference to the Supreme Court of Grenada and the West Indies Associated States wherever this appears in the Constitution.
3.1. Proposed Amendments:
The substantive amendments proposed are the following:-
- Replacing the West Indies Associated States (Appeals to Her Majesty in Council) Order 1967:
- Constitutional Instrument: The Agreement Establishing the CCJ will replace the Appeals to Her Majesty in Council Court Order, 1967 – the current constitutional instrument which provides for appeals to the Privy Council
- References: In the Constitution, wherever a reference is made to Appeals to Her Majesty in Council, this will be replaced by Agreement Establishing the CCJ.
- New Section, Part VIII A: An insertion, Chapter VIII A, makes provisions for the Jurisdiction of the Caribbean Court of Justice It incorporates Sections 104 and 105 Appeals to the Privy Council are abolished
- Section 104, Appeals to CCJ: Section 104, Appeals to her Majesty in Council, has been repealed – thus abolishing appeals to the Privy Council – and replaced by a new Section 104, Appeals to the Caribbean Court of Justice.
- Effects of the Proposed Amendments:
The intent of the CCJ Bill 2018 is that the CCJ would become the final court of appeal. The right of appeal of the court decisions would now be only to the Caribbean Court of Justice Decisions of the CCJ would be final and there would not be any appeals of decisions of the CCJ.
Besides making the CCJ, Grenada’s final court of appeal, the amendments would also impact other constitutional provisions:
- Constitutional Instrument: The Agreement Establishing the Caribbean Court of Justice would be entrenched in Grenada’s constitution It would become a constitutional instrument by virtue of replacing the Appeals to Her Majesty in Council Order
- Effect on Other Constitutional Provisions: The proposed amendments would also affect other provisions of the Constitution Note is taken of the following:-
- Section 39: Alteration of the Constitution and certain other laws This includes the Courts Order and Appeals to Her Majesty in Council
- Section 104: Appeals to the CCJ
- Section 111: Interpretation
- Schedule 1 to the Constitution: Part I Provisions of the Constitution referred to in Section 39(5) and Part II Provisions of the Court Order referred to in Section 39(5)
- Section 39: Alteration of the Constitution and Certain Other Laws:
Section 39 sets out the provisions and steps to alter the constitution and constitutional orders including the Court Order A bill to alter the constitution and constitutional orders require:-
- House of Representatives: The support of two-thirds of all the members of the House of Representatives
- Referendum: the support of two-thirds of the voters who cast their vote in a referendum
- Changes to the Agreement Establishing the CCJ:
The following amendments are worthy of note:-
- Amended Sections 39(1) and 39(2): Amendments proposed by the CCJ Bill 2018 to Section 39(1) and Section 39(2), provide for alterations to Agreement Establishing the CCJ in order for a Bill to alter the Agreement to be passed in the House of Representatives, it would require the support of two-thirds of the members of the House.
- Amended Section 39(5): Section 39(5) sets out the steps and provisions for a referendum in respect of altering the constitution or constitutional instruments. The proposed amendments of this section do NOT replace the Appeals to Privy Council Order by the Agreement Establishing the CCJ.
- Requirement for a Referendum Removed: The amended text, therefore, removes the requirement of a referendum in respect of amendments to the Agreement Establishing the CCJ
- Insertion of new Section 39(5A): An insertion 39(5A) is proposed and would remove the requirement of a referendum in respect of any bill “to alter section 8 of the Courts Order to give effect to any agreement among countries in and over which the Supreme Court has jurisdiction…” (Clarity on the Court Order is required This article did not have the benefit of perusing the referenced Court Order which does not seem to be a widely available public document).
- Insertion of new Section 39(10): This insertion specifies that references to the Agreement makes reference to the provisions in the Agreement which relate to the Appellate jurisdiction of the court.
- Section 104: Appeals to the Caribbean Court of Justice:
Section 104, Appeals to Her Majesty in Council, is to be deleted and replaced by a new Section 104, Appeals to the CCJ. The amendments would provide as follows:-
- Section 104(1): to provide for appeals as of right to the Caribbean Court of Justice.
- Section 104(2): to provide for leave of the Court of Appeal re appeals to the CCJ.
- Section 104(3): to provide for special leave of the CCJ to make appeal to the CCJ.
- Insertion of new Section 104 A: Decisions of the Caribbean Court of Justice shall be final and “shall not be subject to any appeal review or other enquiry whatever in any other court, tribunal or body whatsoever”.
- Insertion of New Section 104 B: Final appeals can be made only to the Caribbean Court of Justice.
- Section 111(1): An insertion is to be made in appropriate alphabetical order defining/clarifying that the Agreement Establishing the Caribbean Court of Justice means “the Agreement Establishing the Caribbean Court of Justice, signed at St Michael, Barbados, on the 14th day of February 2001, together with all Protocols and amendments thereto”;
- Points to Ponder:
- Agreement to be a Constitutional Instrument: The Agreement Establishing the Caribbean Court of Justice is being entrenched in Grenada’s Constitution, replacing the Appeals to Her Majesty in Council Order, 1967 which currently provides for Appeals to the Privy Council
- Should the Agreement Establishing the Caribbean Court of Justice be entrenched in the Constitution?
- Have any of the countries which acceded to the Appellate Jurisdiction of the CCJ entrenched the Agreement in their respective constitutions?
- Alteration of the Agreement Establishing the CCJ re CCJ Bill 2018:
- Parliament to Make Alterations: The amendments make provisions for the alteration of the Agreement by Parliament
- Reference Art. XXXII of the Agreement: The Agreement provides for amendment by the Contracting Parties, ie the signatories to the Agreement, subject to ratification, in accordance with their respective constitutional procedures…”
- Regional Court/National Parliament: Are the proposed amendments to alter the Agreement in sync with the provisions of the Agreement? Can a NATIONAL Parliament, on its OWN amend the Agreement establishing a REGIONAL Court which has jurisdiction over a number of other countries of the region?
- REMOVAL of Referendum: The amendments remove the requirement that any changes to the Agreement be subject to a referendum Does this proposal remove the right of the citizen to have a say in future decisions pertaining to appeals to the final court of appeal?
- Section 104 (5), Appeal as of Right, Prescribed Value: The proposed amendments re prescribed value are not aligned with the provisions in the Agreement.
- Prescribed Value: Section 104(1) provides for an appeal of right to the CCJ in civil proceedings where the matter in dispute on appeal to the Court is of the prescribed value or upwards;
- Section 104(5): This section clarifies that prescribed value is means the value of fifteen hundred dollars or such other value as may be prescribed by Parliament.
- Art. XXV, Section 2(a): The Agreement establishes that the prescribed value is not less than EC$15,000.
6 November referendum day! The referendum is your business! You must vote!! Make an informed vote!!!
 “(5A) The provisions of paragraph (c) of subsection (5) of this section shall not apply in relation to any bill to alter section 8 of the Courts Order to give effect to any agreement among countries in and over which the Supreme Court has jurisdiction to substitute for references in that section to “the Judicial Committee of Her Majesty’s Privy Council” and “the Judicial Committee” references to “the Caribbean Court of Justice”.
 Schedule 1, Part II, Provisions of the Courts Order Referred to Section 39(5) – specifies the provisions of the Court Order referred to in Section 39(5). These provisions are subject to referendum.
 clause (b) of paragraph 1 of Article III of the Agreement Establishing the CCJ
2003. Protocol on the Status, Privileges and Immunities of the CCJ and the Regional Judicial and Legal Services Commission
2004, Revised Agreement Establishing The Caribbean Court Of Justice Trust Fund
2005, Protocol to the Agreement Establishing the Caribbean Court of Justice Relating to Tenure of Judges, Rules of Court, Financial Arrangements and Withdrawal from Agreement as well as Relationship between Provisions of Original Jurisdiction of the CCJ and Constitutions of State Parties.
2005, Protocol to the Establishing the Caribbean Court of Justice Relating to the Security of Tenure of Members of the Regional Judicial and Legal Services Commission