Independent Jamaica Council for Human Rights (1998) Ltd & Ors v. Marshall-Burnett & Anor (Jamaica)  UKPC 3 (03 February 2005)
Privy Council Appeal No. 41 of 2004
Independent Jamaica Council for Human Rights (1998)
Limited and Others Appellants
(1) Hon. Syringa Marshall-Burnett
(2) The Attorney General of Jamaica Respondents
THE COURT OF APPEAL OF JAMAICA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 3rd February 2005
Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
[Delivered by Lord Bingham of Cornhill]
"5.-(1) Where any amendment to the Agreement is ratified by the Contracting Parties, the Minister may, upon the coming into force of that amendment, by order amend the Schedule by including therein the amendment so ratified.
(2) Any order made under this section may contain such consequential, supplemental or ancillary provisions as appear to the Minister to be necessary or expedient for the purpose of giving due effect to the amendment ratified as aforesaid and, without prejudice to the generality of the foregoing, may contain provisions amending references in this Act to specific provisions of the Agreement.
(3) Every order made under this section shall be subject to affirmative resolution.
(4) Where the Schedule is amended pursuant to this section, any reference in this Act or any other instrument to the Agreement shall, unless the context otherwise requires, be construed as a reference to the Agreement as so amended."
The CCJ is to have an original jurisdiction. It is also to have an appellate jurisdiction, defined as in the new section 110 inserted in the Constitution by the Constitutional Amendment Act. Section 16 provides:
"A Judge of the Court [the CCJ] may exercise all of the powers and functions of a Judge of the Supreme Court or of the Court of Appeal with respect to the area within its jurisdiction."
Provision is made in section 20 for a Regional Judicial and Legal Services Commission which is to consist of persons appointed in accordance with the Agreement. Under section 21 the Commission has responsibility for making appointments to the office of Judge of the Court, other than that of President, terminating appointments in accordance with the provisions of the Agreement, making a recommendation for the appointment of the President and exercising disciplinary control over the Judges of the Court other than the President. By section 21(5),
"The proceedings of the Commission shall not be inquired into by any court of law or tribunal."
"5.-(1) Subject to Article IV, paragraph 5, the President shall be removed from office by the Heads of Government on the recommendation of the Commission, if the question of the removal of the President has been referred by the Heads of Government to a tribunal and the tribunal has advised the Commission that the President ought to be removed from office for inability or misbehaviour referred to in paragraph 4.
(2) Subject to Article IV, paragraph 6, a Judge other than the President shall be removed from office by the Commission if the question of the removal of the Judge has been referred by the Commission to a tribunal; and the tribunal has advised the Commission that the Judge ought to be removed from office for inability or misbehaviour referred to in paragraph 4.
6. If at least three Heads of Government in the case of the President jointly represent to the other Heads of Government, or if the Commission decides in the case of any other Judge, that the question of removing the President or the Judge from office ought to be investigated, then –
(a) the Heads of Government or the Commission shall appoint a tribunal which shall consist of a chairman and not less than two other members, selected by the Heads of Government or the Commission, as the case may be, after such consultations as may be considered expedient, from among persons who hold or have held office as a Judge of a court of unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth, or in a State exercising civil law jurisprudence common to Contracting Parties, or a court having jurisdiction in appeals from any such court; and
(b) the tribunal shall enquire into the matter and advise the Heads of Government or the Commission, as the case may be, whether or not the President or the Judge ought to be removed from office.
8. If the question of removing the President or any other Judge of the Court from office has been referred to a tribunal under paragraph 6 of this Article, the Heads of Government in the case of the President, or the Commission, in the case of any other Judge of the Court, may suspend such Judge from performing the functions of his office, and any such suspension may at any time be revoked by the Heads of Government or the Commission, as the case may be, and shall in any case cease to have effect if the tribunal advises the Heads of Government or the Commission that the Judge ought not to be removed from office."
The original and appellate jurisdictions of the CCJ are prescribed in some detail. Subject to the Agreement and with the approval of the Conference of Heads of Government of Member States of the Caribbean Community, the Commission are to determine the terms and conditions and other benefits of the President and other members of the Court, which may not be altered to their disadvantage during their tenure of office. The assessed contributions of the contracting states are to be charged to the Consolidated Fund or public revenues of the respective states (article XXVIII, paras 1, 2 and 3). Reference should lastly be made to article XXXII:
1. This Agreement may be amended by the Contracting Parties.
2. Every amendment shall be subject to ratification by the Contracting Parties in accordance with their respective constitutional procedures and shall enter into force one month after the date on which the last Instrument of ratification or accession is deposited with the Secretary-General (hereinafter in this Agreement referred to as 'the Depositary')."
"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."
Thus the Constitution and not, as in the United Kingdom, Parliament is (save in respect of Chapter III of the Constitution) to be sovereign. It was of course foreseen that with the passage of time and the benefit of experience alteration of the Constitution would on occasion be necessary, and the framers of the Constitution took care to grade its provisions so as to require differing levels of popular support depending on the structural significance of the provision to be altered.
"(4) A Judge of the Supreme Court may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of subsection (5) of this section.
(5) A Judge of the Supreme Court shall be removed from office by the Governor-General by instrument under the Broad Seal if the question of the removal of that Judge from office has, at the request of the Governor-General, made in pursuance of subsection (6) of this section, been referred by Her Majesty to the Judicial Committee of Her Majesty's Privy Council under section 4 of the Judicial Committee Act, 1833, or any other enactment enabling Her Majesty in that behalf, and the Judicial Committee has advised Her Majesty that the Judge ought to be removed from office for inability as aforesaid or for misbehaviour.
(6) If the Prime Minister (in the case of the Chief Justice) or the Chief Justice after consultation with the Prime Minister (in the case of any other Judge) represents to the Governor-General that the question of removing a Judge of the Supreme Court from office for inability as aforesaid or for misbehaviour ought to be investigated, then –
(a) the Governor-General shall appoint a tribunal, which shall consist of a Chairman and not less than two other members, selected by the Governor-General on the advice of the Prime Minister (in the case of the Chief Justice) or of the Chief Justice (in the case of any other Judge) from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court;
(b) that tribunal shall enquire into the matter and report on the facts thereof to the Governor-General and recommend to the Governor-General whether he should request that the question of the removal of that Judge should be referred by Her Majesty to the Judicial Committee; and
(c) if the tribunal so recommends, the Governor-General shall request that the question should be referred accordingly."
Each of these provisions is entrenched under the Constitution, as are the succeeding subsections, which need not be quoted. So also is section 101, which deals with the emoluments of Supreme Court judges: these are to be such as may from time to time be prescribed by or under any law, but they are not to be altered to the judge's disadvantage during his continuance in office and salaries are to be charged on and paid out of the Consolidated Fund.
"The Bill seeks to transfer to the CCJ the jurisdiction exercised by the Judicial Committee of the Privy Council by virtue of Part 3 of Chapter VII. None of the provisions in Part 3 is entrenched. The Bill, in my judgment, seeks to have Judges appointed to the Court on substantially the same terms as those laid down in Chapter VII of the Constitution. Accordingly, it was not necessary for the respondents to seek to amend or alter any of the entrenched or deeply entrenched provisions of Chapter VII. As the Solicitor General correctly submitted, it is incorrect to say that the amendments of Chapter VII sought by the Bills require the procedure applicable to the entrenched sections. I hold, therefore, that the respondents have embarked upon the correct constitutional procedure in introducing the Bills."
"that their independence from political pressure by Parliament or by the executive in the exercise of their judicial functions shall be assured by granting to them such degree of security of tenure in their office as is justified by the importance of the jurisdiction that they exercise."
This independence was assured by the provisions enacting (per Lord Diplock, p 219) that
"They can only be removed from office upon the advice of the Judicial Committee of Her Majesty's Privy Council in the United Kingdom given on a reference made upon the recommendation of a tribunal of inquiry consisting of persons who hold or have held high judicial office in some part of the Commonwealth."
From these Jamaican courts an appeal lay to this Board which, although enjoying no entrenched protection in the Constitution, was known to be wholly immune from executive or parliamentary pressure in any jurisdiction from which appeals lay and whose members were all but irremovable.
"The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all."
Fitzgerald CJ, sitting in the Supreme Court of Ireland, adopted a similar test in Maher v Attorney-General  I.R. 140, 147, where he said:
"But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity."
In the present instance Parliament legislated not simply to revoke the right of appeal to the Privy Council but to replace it with a right of appeal to the CCJ. From statements made to the Senate by the Attorney-General on 1 and 2 July 2004, and by the Prime Minister and the Minister for Foreign Affairs to the House of Representatives on 27 and 28 July, it is clear that the three measures were seen as "connected" "companion measures" intended to be part of a single, interdependent scheme. The bills were presented as a package. On the material now before the Board it would not appear to have been the intention of Parliament to revoke the right of appeal to the Privy Council without putting anything in its place, and this provision cannot therefore be severed. This is a conclusion which the Solicitor General expressly declined to challenge.