Jurisdictional issues in the adjudication of human rights claims under commonwealth caribbean constitutions

• Author: Calvin A. Eversley
• Position: LL.M. (Harvard), LL.B. (Hons.), DPA (Distinction) ,LEG, Senior Lecturer in Law, University of Guyana
• Pages: 69-86

JURISDICTIONAL ISSUES IN THE

ADJUDICATION OF HUMAN

RIGHTS CLAIMS UNDER

COMMONWEALTH CARIBBEAN

CONSTITUTIONS

CALVIN A. EVERSLEY*

Introduction

It

is,

perhaps, symptomatic of the age of confusion that we live

in1

that the

issue

of the jurisdictional scope and limitations of the power of our Common-

wealth Caribbean courts to adjudicate in constitutional claims of human rights

still continues to be bedevilled by misconceptions, notwithstanding the clear

articulation of this matter in our constitutions.

The narrow issue which seems to have provoked some controversy is

whether or not

the

High Court, which

is

subordinate in the hierarchy structure

to the

Court of Appeal has

the

jurisdiction

to

determine

a

constitutional claim

of an alleged breach of a person's fundamental rights by the members of a

specifically constituted Court of Appeal. If the answer to this question is in

the

affirmative, then one consequential

issue

which arises is whether there are

any limitations as to the nature of

the

claims which can be adjudicated upon

in this

regard.

A

further issue which logically results from the foregoing is the

determination of the limitations, which would of necessity be imposed by the

*LL.M. (Harvard), LL.B.

(Hons.),

DPA (Distinction), LEG, Senior Lecturer

in

Law, University

of Guyana.

1 Charles Dickens' immortal words in A Tale of

Two Cities

are very apt: "It was the best of

times) it was the worst of times, it was the age of wisdom, it was the age of foolishness, it

was the epoch of

belief,

it was the epoch of incredulity, it was the season of Light, it was

the season of Darkness ...."

requirements of natural justice, with respect to the composition of the Court

of Appeal which has to be constituted to hear the appeals (where the right of

appeal exists) in this context. It seems to be beyond argument, as a matter of

principle, that it would be seriously offensive to the basic tenets of natural

justice if the very members of the Court of Appeal, whose actions are being

challenged as breaches of citizens' fundamental rights, are themselves the final

arbiters of the constitutional legality of their own actions! The only just

solution in this context, therefore, is to have such appeals heard by a differently

constituted Court of Appeal, whose members are not tainted by any bias as a

matter of law.

Interestingly, one further problem which has potentially been thrown up in

the wake of the unprecedented decision of the House of Lords in Re

Pinochet,

is what is the scope of the jurisdiction, if any, of our final Court of Appeal to

reopen and rehear its own decisions, particularly in matters where fundamen-

tal rights are involved.

Judicial Review in General

The United States Experience

The seminal decision of the United States Supreme Court in Marbury v.

Madison3 is particularly instructive, not only for its authoritative conferral of

the jurisdictional power of judicial review of a congressional statute on the

United States Supreme Court, but equally so, or perhaps moreso, for the

manner of its conferral of such an awesome jurisdiction which was not

expressly conferred by either the Constitution of the United States or any Act

of the United States Congress.

Chief Justice

Marshall,

in an unanimous decision of the United

States

Supreme

Court, inferred the power of judicial review from the grant of original jurisdiction

to the Supreme Court by Article III of the United States Constitution and the

written nature of the United States Constitution. He opined that:

"The particular phraseology of

the

Constitution of the United States confirms

and strengthens the principle,

supposed to be essential to all written

constitutions,

that a law repugnant to the Constitution

is

void,

and that

Courts,

as well as other

departments, are bound by that instrument.

2 The Times, February 16, 2000.

3

1

Cranch (5 U.S.) 137(03).

4

Ibid.,

at

p.

180 (emphasis added).