It is with grave concern and the most deep rooted anxiety that I read in totality the judgment of the Court of the Appeal of the Eastern Caribbean Court, Saint Lucia Circuit promulgated by Honourable Dame Janice M. Pereira (Chief Justice); Honourable Louise Blenman Justice of Appeal and Honourable Justice Don Mitchell Justice of Appeal (Acting).
It was of grave concern because on the most anxious scrutiny of detailed perusal of the judgment, it was clear and without doubt that the Court wrote into the Saint Lucia Constitution Order 1978 what was not written, when it went on to state as it did at paragraph 31 of the judgment of the majority which reads thus insofar as relevant in reference of Section 108 and 107 of the Constitution; “. . . reading “108” in place of “107,” section 41(7)(a) reads as follows:
“The provisions of paragraph (b) of subsection (6) of this section shall not apply in relation to any bill to alter a) section 108 of this Constitution in order to give effect to any agreement between Saint Lucia and the United Kingdom concerning appeal from any court having jurisdiction in Saint Lucia to Her Majesty in Council.”
The majority of Court of Appeal, with respect, was plainly wrong in my humble view when it went on to state shortly after the above passage reproduced (same paragraph 31 of the judgment of the majority view of the court) when it went further to hold: “In my view, substituting “108” for “107” makes perfect sense and accords to section 41(7)(a) . . .”
This a serious fundamental error of law as the Constitution is the supreme law and it says this in section 120 of the Saint Lucia Constitution Order 1978 and it reads thus and makes reference in fact to section 41, the same very section 41 that gave rise to this controversial ruling of an Appellate court:
“This Constitution is the supreme law of Saint Lucia and, subject to the provisions of section 41, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”
It is important to examine the provisions of section 41 to which section 120 states it is subject to. But the provisions of section 41 of the Constitution and its Constitutional importance I shall return to in due course.
It is my humble view that there was no need of the passing of Attorney General’s Reference (Constitutional Questions) Act Cap 17.18 Revised Laws of Saint Lucia 2008 in order for the court to interpret any provision of the Constitution because the issue before the Court as both the majority and minority member of the Court of Appeal stated raised “question, one of great constitutional significance” so as this was a Constitutional issue it ought to have been brought by way of a Constitutional Motion before the High Court with the Chief Justice making rules for that purpose, so that in accordance with 107(c) of the Constitution to which an appeal shall then lie to the Court of Appeal.
In my respectful opinion, the Court of Appeal should never have been the Court of first instance in any event whatever the disavows of the construction of the Constitution may be, which in any event for the reasons below was clearly misplaced and misconceived by the Court of Appeal with respect however intended it may have been. This makes a mockery of the provisions of Section 108(2) in its wider terms and section 108(3) in any event which cannot be read in isolation of Section 107(c) generally, because whatever be the altering of the Constitution, such alteration must be proceeded with under Section 41 as provided for procedurally under the Constitution which is supreme law. It is not for the any Court to alter the Constitution by writing into it what has not been written by the framers of the Constitution as in this case the Court of Appeal wrote into the Constitution what had not been written or alternatively, rewrote the provisions of Section 107 and 108 of the Constitution taken together as it clearly so did in its majority judgment. This was highly improper in my view of an Appellate Court and indeed repugnant of it so to do, not least of all impermissible, putting it bluntly!
CONSTITUTIONALITY/PROCEDURAL SAFEGUARDS OF SECTION 41
This is the clearest case of circumvention or bypassing of the procedural safeguards provided for in Section 41 of the Constitution and on close examination of section 41 thereof my view is as follows;
It is my view as provided for under section 41(1) Parliament is the only authority to whom power is vested to alter the Constitution. This is the first point.
The second point is that under Section 18(1) Her Majesty, the Queen is part of any court of law under the interpretation provisions of Section 18 under meaning of court. The representative of Her Majesty as is well known across the region (OECS) is the Governor General of Saint Lucia and it should be noted under Section 23 Her Majesty is head of Parliament, since as a body, Parliament clearly embraces Her Majesty as part of the embodiment of Parliament and the Governor General by virtue of Section 19 is the Queen’s representative for that purpose.
It is plain that by virtue of Section 41(2) the starting point of any alteration to any part of the constitution is by way of the introduction of a bill other than as it later appears in one of the subparagraphs of Section 41, Section 107 is not to be subject to any alteration whatsoever. In this case, no bill had been brought before the House far less altering of the Constitution by an Appellate Court, which, in my view, is the effect of what the majority of the Court of Appeal did in the present case encouraged by the submissions of two leading and Senior Attorneys on behalf of the Attorney General, acting on behalf of the Government. No bill was brought before the House in my view, conversely, this is a violation of Section 41(2).
Section 41(3) of the Constitution then permits that once a bill is brought and must be in its final reading in the House supported by no less than two thirds of members of the House. This was not done resulting as I have indicated, a further violation of this provision of the Constitution.
Even if the hurdle of Section 41(1), (2) and (3) had been surmounted, which, in my respectful opinion, it had not in the present case, there was still a further hurdle to be surmounted under the bill pursuant to Section 41(4) and 41(5) when taken together, it requires an Amendment to the bill to be passed by the Senate by resolution of no less than three quarter of its members under Section 41(4) and no less than two thirds of its members under Section 41(5). This was not done.
Even far worse, is that the alteration of any part of the Constitution other than Section 107, involves the Governor General Her Majesty’s representative, as Section 41(6) requires firstly, that a bill for alteration of the Constitution cannot even be submitted to the Governor General under Section 41(6)(a) unless there has been an interval of not less than 90 days between the introduction of the bill in the House and the beginning of the proceedings in the House on the second reading of the bill. In the present case, there was no interval of any kind not least even for a day talk less of 90 days requirement under the Constitution. This was simply not adhered to like all the other sub provisions of Section 41 read as whole. Even here, Section 41(6)(b) of the Constitution speaks to a referendum before it can even begin to get off the ground. In the instant case, alteration to the Constitution via the Court of Appeal route is none starter and bad law and must be struck down by the Privy Council as unconstitutional.
What Section 41(7) then does is that it places a bar over altering Section 107 because bearing in mind that Section 41(6)(b) requires a referendum so that when Section 41(7) reads as it does, namely; “The provisions of subsection (6)(b) shall not apply in relation to any bill to alter section 107.” This is clearly couched in mandatory terms as most part of the sub sections of Section 41 reads throughout. This was not done.
Section 41(8) gives the people of Saint Lucia, its citizens, namely, those who had voted in members of the House, the right to be able to vote as regards a referendum to alter any part of the Constitution. That is plain from the reading of section 41(8). This was not done.
Section 41(9) is a provision of the vote by way of referendum by ballot and then Section 41(10) requires that the responsibility of a referendum shall be the responsibility of the Electoral Commission as it does in every other election under Section 37 and 52 of the Constitution. This was not done and this body should have been party to proceedings.
It is my respectful opinion that for the referendum to be binding in law, it ought to receive assent of the Governor General and even at that, no assent is valid until both the Speaker and Chief Elections Officer have both issued a Certificate by their hand that it is in accordance with the referendum accords with provisions of Section 41(2), (3), (4), (5) and 6(b) of the Constitution. This is a fundamental and Constitutional requirement under Section 41(11) to which there can be no derogation on any view.
It follows from all the above sub sections of Section 41 that there has been not just a mere breach of the Constitution but in fact a wholesale breach of all the provisions of subsections of Section 41 thereof.
I concur with the minority member of the Court of Appeal, Honourable Mr Don Mitchell Justice of Appeal (Acting) as he was the only member of the Court who had cited the relevant cases on this issue such Moses Hinds and Others v. The Queen [1976] 2 WLR 366 at page 374 cited fully at paragraph 49 of the judgment of the Court of Appeal. The analysis of the law from paragraph 57 – 67 of the judgment of the Justice of Appeal, Don Mitchell is absolutely correct and reference to Inco Europe Ltd and Others v. First Choice Distribution (a firm) and Others [200] 1 WLR 586 at p.592E is also correct amongst others cited.
Also, I totally agree with him as he did at paragraph 68 of his dissenting judgment, that “reference in section 41(7)(a) of the Constitution is properly a reference to section 107, and was not intended to be reference to section 108” misnomer pronouncement by the majority of the Court of Appeal, namely, that reference to Section 41(7)(a) was reference to section 108 and therefore that reference to section 107 was in error was far from being sound for an Appellate Court in respectful opinion, and what in practice could be regarded as perverse.
In the current scenario where the Government proposes to pass ordinary legislation to abolish the right of appeal to the Privy Council and to be part of the CCJ as the final Appellate Court from appeal arising out of the decision of the Court of the Appeal, wouldn’t it be “equally permissible to a less well-intentioned Parliament to confer” on “any other person or body of persons not qualified to exercise judicial powers” under the Constitution, the right to sit on appeal over the decisions of the Court of Appeal and “ in this way, without any amendment of the Constitution, to open the door to the exercise of arbitrary power by the Executive…” Hinds and others v The Queen [1976] 1 ALL E.R. 353 at page 370 at letter i.
Further, The Judicial Committee of the Privy Council is not a court but advises the Head of State and their advice is followed by convention. Indeed it is a Committee of the Privy Council, which hears these matters as you are appealing to the Head of State who follows that advice by convention. England’s Constitutional process (albeit unwritten) is largely convention, a matter I respectfully suggest the Government of Saint Lucia… may not fully appreciate. Hindsight suggests that at the time of creation of the Saint Lucia Constitution Order 1978, there was on the face of it in the case of the Privy Council, no apparent need to speak to entrenchment, as the Privy Council was external to each state in the OECS region in the first place and that appeal is to Her Majesty in Council in any event.
When one reads Privy Counsel decisions you will note that The Judicial Committee of the Privy Council only ‘humble advises Her Majesty’ and Her Majesty’s position is itself deeply entrenched and could not be removed by ordinary legislation. The ability to remove this right, despite the position of the direct avenue as of right to appeal to Her Majesty in Council in the Constitution (i.e. through Section 108(1)(d) and 108(2)(a)—cases of great or general public importance on interpretation of the Constitution and 108(3)—Special Leave cases), is therefore in significant doubt as ordinary legislation cannot remove the avenue of appeal by Special Leave to Her Majesty pursuant to Section 108(3) in my humble view.
Firstly, if the decision of the Court of Appeal is not challenged citizens will be losing the right of appealing to the highest tier of the judicial system, (Privy Council) which consists of Judges of the highest calibre and so recognised before and after Saint Lucia’s independence to this day.
Secondly, if you take away this substantial right, in my view, you should, (so as not to diminish that which citizens previously enjoyed), provide a Court of similar or acceptable quality (insofar as the protection of judges is concerned) in its place or secure the agreement of a sufficient majority to make the necessary constitutional changes as required under Section 41(1), (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11) of the Constitution.
Thirdly, doing what the Prime Minister has done, namely, doing something, which has the potential of throwing the country into turmoil,
if not now, potentially in the future as the measure may well be unpopular among the citizens and not supported at all.
Fourthly, the removal of the Privy Council, destroys the integrity of the judicial system. Citizens have a legitimate expectation to expect the Privy Council would remain intact, certainly with respect to the final tier of appeal, and only removed and adjusted after consultation with them or possibly if a sufficient special majority in Parliament also agree.
Fifthly, the legislation will have the effect of dismantling and dismembering the scheme of the Constitution in a manner that ought not to be permitted, as Her Majesty’s right to grant Special Leave to appeal would remain despite passage of the Bill. If the abolition of the right of appeal was permitted with the right of Her Majesty to grant special leave remaining, the system would then be incoherent and impure in the sense that the country would be left with the untenable situation where litigants have access to Special Leave which vests in Her Majesty or to appeal to the CCJ, leading to the possibility of conflict in the Law and the obvious Constitutional difficulties that could be brought about by that confusion, if for example you were in fact to have conflicting rulings. One from the CCJ and one from the Privy Council where special leave was granted.
In short, the Saint Lucia Constitution Order 1978 cannot be interfered with by way of alteration by any Court of law and that is the effect of the decision of the Court of Appeal whether you like it or not, that is the reality of its decision. But I would respectfully submit on authority, of the decision of the Privy Council in Logan v The Queen [1966] 2WLR 711 that Her Majesty’s right remains. In giving the judgement of their Lordships in that case, Lord Steyn said at page 720:
“The Judicial Committee has no function in relation to the prerogative of mercy. What it does have under the Constitution of Belize is the function of being the ultimate legal court of appeal. That function can be abolished or modified by the people of Belize by amending the Constitution. But so long as the Constitution remains unamended, no law of Belize (whether pre-dating or post-dating the Constitution) can validly curtail the constitutional right of the citizens of Belize to apply to the Judicial Committee, in compliance with the rules made under the Acts of 1833 and 1844, for special leave to appeal or the right of the Judicial Committee to grant such application in a proper case.”
Accordingly, the decision of the majority of the Court of Appeal in my respectful submission is not just plainly flawed, but fatally flawed.
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