Editor’s Note: Today we publish the 2016 Report on Commonwealth Caribbean constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Derek O’Brien, Oxford Brookes University
I. Introduction
Elections in the Commonwealth Caribbean are often held up as a vital sign of the region’s commitment to democracy. In the 50 odd years since Jamaica and Trinidad and Tobago became the first countries in the region to attain independence, successive governments across the region have respected the outcomes of elections, peacefully surrendering power to their successors and, in the process, satisfying Huffington’s ‘two-turnover test’ for democracy.[1] 2016 was no exception, witnessing the orderly transfer of power in Jamaica and St Lucia, following general elections in February and May 2016, respectively. In both cases, the respective Prime Ministers exercised the discretion vested in them to recommend the dissolution of Parliament[2] and called a general election before it was constitutionally due (one year early in the case of Jamaica and 10 months early in the case of St. Lucia), presumably because they reckoned that this was their best chance of securing electoral victory. However, both Prime Ministers badly misjudged the mood of their voters as they were both swept from power by the opposition.[3]
2016 also witnessed one of the most significant constitutional referendums to be held in the region since independence as voters in Grenada were asked to vote on seven separate Constitution (Amendment) Bills, which sought variously to: limit the number of terms of office a Prime Minister can serve; enhance the integrity of the electoral process; guarantee gender equality; and vest ultimate legal sovereignty in a regional appellate court, the Caribbean Court of Justice (CCJ), to replace the Judicial Committee of the Privy Council (JCPC).[4] In an outcome that surprised many in the region, including the Government of Grenada, which had been carefully laying the groundwork for this referendum for many years beforehand, not one of the seven Constitution (Amendment) Bills attracted the two-thirds majority of voters that was needed to amend the Constitution.[5] Indeed, not one of the seven Bills managed to secure even a simple majority of the voters in the referendum. The Government of St Kitts was, however, more successful in implementing reform of its constitution by securing the successful passage of legislation to limit the maximum number of terms of office that a Prime Minister can serve to two (one less than the number of terms that had been proposed and rejected in the Grenada referendum).[6]
Elsewhere in the region, Barbados and Guyana celebrated the 50th anniversary of their attainment of independence from the former colonial power, Britain. Constitutional links to Britain within the region, however, remain strong for the reasons discussed in more detail below.
II. The Constitution and the Court
The Commonwealth Caribbean is in the highly unusual position of having not one, but two Constitutional Courts; the JCPC, which is the final appellate court for the majority of countries in the region; and the CCJ, which is the final appellate court for four countries in the region—Barbados, Belize, Dominica and Guyana. This is a major disappointment for the CCJ’s supporters. When it was originally conceived, it was intended that the CCJ would serve as the final appellate court for the entire region. This would not only increase access to justice for the region’s citizens by making it cheaper and more convenient to bring an appeal before a local court rather than a court located 4000 miles away in London, but would also, it was hoped, enable the judges of the CCJ, being citizens of the communities in which they served, to develop a distinctively Caribbean constitutional jurisprudence.[7]
As noted above, these arguments were not, however, enough to convince the voters in Grenada to support a Constitution Amendment Bill, which would have given effect to the appellate jurisdiction of the CCJ. In the event, just over 40% of those voting supported the amendment.[8] This is a major blow for the CCJ since several other countries in the region require the support of a majority of voters in a referendum in order to amend their Constitution to give effect to its appellate jurisdiction of the CCJ.[9] Since independence, only one Government has managed to secure the support of a majority of voters in a referendum for constitutional reform, and that was the Government of Guyana in 1980 in a referendum that was widely believed to have been rigged.[10] It is notable that the Government of Antigua and Barbuda postponed a planned referendum on whether to ratify the appellate jurisdiction of the CCJ to this year to allow for greater public education on the issue,[11] while the Government of St Lucia recently sought and succeeded in obtaining an order of the Eastern Caribbean Court of Appeal correcting a draftsman’s error in the Constitution to enable the amendment of the Constitution to replace the JCPC with the CCJ without the need for a referendum on the issue.[12]
III. Constitutional Controversies
Apart from the issue of abolishing the right of appeal to the CCJ and the criminalisation of homosexuality (discussed further below), the other main constitutional controversy in the region in 2016 concerned the question of whether to abandon constitutional monarchy in favour of a non-executive presidential republicanism.
The new Prime Minister of Jamaica, Andrew Holness of the Jamaica Labour Party, for example, has vowed to introduce legislation in the current session of Parliament to amend the Constitution by replacing the Queen with a non-executive President as the head of state.[13] In this he can reasonably expect to enjoy the support of the opposition People’s National Party (PNP) as the Bill passes through Parliament since this is exactly what the PNP had themselves promised to do when taking office back in 2011.[14] However, the support of the opposition, though vital if the Government is to secure the two-thirds majority it needs in both Houses of Parliament, will not be enough in and of itself; removing the Queen will involve an amendment of one of the Constitution’s ‘specially entrenched’ provisions and will, therefore, require, in addition, the approval of a majority of Jamaica’s citizens in a referendum.[15]
In Barbados, the ruling Democratic Labour Party announced plans to introduce legislation to replace the Queen to coincide with the 50th anniversary of Barbados’s independence in November 2016,[16] but that date passed without the necessary legislation being enacted by Parliament.
Though the Constitutional reform Commission of Grenada originally recommended asking voters in the referendum to support an amendment of the Constitution to replace the Queen with a non-executive President, the recommendation was not accepted by the Government. Instead voters were asked to support a Constitution (Amendment) Bill which would have entitled public officials to swear allegiance to the state of Grenada instead of the Crown, but even this relatively modest reform was rejected by a majority of voters in the referendum.[17]
IV. Major Cases
Two of the most significant cases in the region in 2016, touching upon rights and freedoms, involved challenge to laws governing homosexuality: Orozco v AG Belize[18] and Tomlinson v State of Belize and Tomlinson v State of Trinidad and Tobago.[19]
How homosexuality is treated by the law is an issue which has aroused huge controversy across the region ever since it became apparent, following the judgment of the European Court of Human Rights (ECtHR), in Dudgeon v UK,[20] that laws which criminalise homosexual acts between consenting adults are repugnant to international human rights norms. Since, with one exception (Trinidad and Tobago), the Bills of Rights to be found in the region’s constitutions were modelled on the European Convention on Human Rights (ECHR),[21] Dudgeon opened up the possibility that local laws which criminalised homosexuality could equally be liable to constitutional challenge and, worse still, that the recognition of equal constitutional status for homosexuals could lead, eventually, to the legalisation of ‘gay marriage.’
A. Criminal Law; Sexual Orientation
The first case which I will consider is Orozco v AG Belize, which involved a challenge to the constitutionality of s.53 of the Belize Criminal Code, which made ‘carnal intercourse against the order of nature with any person or animal’ a criminal offence liable to ten years imprisonment. Though there was no known statutory or clear judicial definition of the terms ‘carnal intercourse’ or ‘against the order of nature’, it was agreed on both sides that it included intercourse between consenting adult males.
The constitutional significance of the case locally, regionally, and internationally, is highlighted by the interested parties that were given leave to join in the proceedings. On behalf of the Claimant, these included: the Commonwealth Lawyers Association, the Human Dignity Trust, the International Commission of Jurists and UNIBAM, a regional NGO campaigning on behalf of LGBT rights. On behalf of the Defendant, these included: the Roman Catholic Church of Belize, the Belize Church of England and the Belize Evangelical Association of Churches. The stage was thus set for a constitutional showdown between various local and international NGOs determined to eradicate discrimination against homosexuals, and religious organisations in Belize equally determined to maintain the criminalisation of homosexuality.
The principal issues in the case that fell to be decided were as follows: whether the claimant had standing to bring these proceedings; whether section 53 violated his right to human dignity pursuant to section 3 of the Constitution, his right to privacy pursuant to section 14(1) and his right to non-discrimination pursuant to s16; and, finally, whether the limitations of these rights provided for by section 9(2) of the Constitution, such as the protection of public health or morality, justified the retention of section 53.
On the issue of standing it was argued on behalf of the defendants that because the Claimant had never been prosecuted for an offence under section 53 he did not possess the necessary standing to bring the claim pursuant to section 20(1) of the Constitution, which requires that those who seek a constitutional remedy must show that one of the provisions of sections 3 to 19 of the Constitution ‘has been or is likely to be contravened in relation to him.’ Referring to the judgment of the ECtHR in Dudgeon on the self-same issue, the Court was, however, satisfied that on the basis of the evidence presented to the Court that prosecutions under section 53, though rare, were still brought from time to time. The claimant was thus perpetually at risk of being prosecuted and, therefore, had the requisite standing to bring the proceedings.
In searching for the meaning of human dignity under section 3 (c) of the Constitution, which the Court regarded as a concept which was central to the fundamental rights and freedoms set out elsewhere in Chapter II of the Constitution, the Court had regard to the definition offered by the Canadian Supreme Court in Law v Canada (Minister of Employment and Immigration,[22] which held that human dignity means that ‘an individual or group feels self-respect and self-worth’: this is harmed ‘when individuals and groups are marginalized, ignored or devalued, but is enhanced ‘when laws recognise the full pace of all individuals and groups within society.’ The Court also had regard to the jurisprudence of the Constitutional Court of South Africa which, in National Coalition for Gay and Lesbian Equality v Minister of Justice,[23] had held that the common law offence of sodomy was unconstitutional because it was a palpable invasion of the right of gay men to dignity which requires: ‘us to acknowledge the value and work of all individuals as members of society.’ Finding itself in agreement with these decisions, the Court concluded that section 53 violated the Claimant’s right to recognition of his human dignity.
Following the decision of the ECtHR in Dudgeon, the Court also had no hesitation in holding that section 53 violated the right to privacy. While section 53 may be gender neutral on its face, it was discriminatory in its effect upon homosexuals and, therefore, violated the Claimant’s right to equal protection of the law pursuant to section 6(1), and not to be subject to laws that were discriminatory either in themselves or in their effect pursuant to section 16(1). In the case of the latter, the Court extended the meaning of ‘sex’, as one of the protected categories under section 16(3), to include sexual orientation. In support of this expansion of the protected categories under section 16(3), the Court invoked the decision of the United Nations Human Rights Council (UNHRC), which had held in Toonen v Australia that the word ‘sex’ in Articles 2 and 26 of the International Covenant of Civil and Political Rights (ICCPR) included ‘sexual orientation’.[24] Since Belize had acceded to the ICCPR two years subsequent to Toonen it was presumed that it ‘tacitly embraced the interpretation rendered by the UNHCR’.[25]
Like the ECHR, the Constitution of Belize permits the limitation by the State of the rights it guarantees if the limitation can be shown to be for the purpose of some legitimate aim, such as public health or public morality. Since the Court was persuaded that the existence of section 53 was damaging the fight against HIV/AIDS, the Defendants were obliged to fall back on the argument that section 53 was justified in the interest of public morality. However, while the Court accepted that the views expressed by the various religious organisations with regard to the immorality of homosexuality were representative of the majority of the Christian community ‘and perhaps the population of Belize’, the Court determined that this was not enough in itself to justify the limitation. From the perspective of legal principle, the Court held that it could not act upon the prevailing majority views. There must be demonstrated that some harm will be caused should the proscribed conduct be rendered unregulated. Since no evidence had been presented as to the likelihood of such harm, the limitations imposed by section 53 could not be justified.
In concluding that section 53 violated the claimant’s rights dignity, equality, privacy and non-discrimination, the Court proceeded to apply the modifications clause to be found in section 134(1), which provided for laws existing at the time of independence, such as section 53, to continue in force subject to ‘such modifications as may be necessary to bring them into conformity with this Constitution.’ This meant reading down section 53 to exclude consensual private sexual acts between adults by adding the following sentence: ‘This section shall not apply to consensual acts between adults in private.’
In a compendium of decisions of Constitutional Courts and international human rights tribunals regarding the incompatibility with human rights norms of laws that criminalise homosexuality, the judgment of the Belize Supreme Court in Orozco would appear fairly unremarkable. However, in the context of the Commonwealth Caribbean it is groundbreaking, not only because it is the first judgment of a national court at any level anywhere in the region to recognise that the criminalisation of homosexuality is repugnant to human right norms, but also because the judgment flies in the face of widespread opposition across the entire region to the decriminalisation of homosexuality. The impact of the judgment elsewhere in the region is, however, limited by the fact that several constitutions in the region include savings clauses that immunise pre-independence laws, such as laws that criminalise homosexuality, from constitutional challenge on the grounds that such laws violate the fundamental rights and freedoms guaranteed by the constitution. For example, section 26(8) of the Constitution of Jamaica, which is typical of such clauses, provides that:
Nothing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter, and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.[26]
The decision in Orozoco could not, as a consequence of these savings clauses, have been delivered by the Supreme Courts of Jamaica, Trinidad and Tobago, Barbados or the Bahamas. Notwithstanding the existence of such savings clauses, however, an alternative means of challenging laws that discriminate against homosexuals was essayed by the Claimant in the second case I wish to consider.
B. Immigration; Sexual Orientation
In Tomlinson v State of Belize and Tomlinson v State of Trinidad and Tobago, the Claimant mounted a challenge to immigrations laws in Belize and Trinidad and Tobago in proceedings before the CCJ, exercising its original jurisdiction to interpret and apply the Revised Treaty of Chaguaramas (RTC), which is the governing treaty of the Caribbean Community and Common market (CARICOM) and the Caribbean Single Market and Economy.
By Article 46 RTC, ‘skilled’ Community nationals have the right to seek employment in another Member State. This right is amplified by a 2007 Decision of the Conference of the Heads of Government of CARICOM, which grants CARICOM nationals an automatic right to enter another Member State for up to six months, subject to the rights of Member States to refuse entry to ‘undesirable persons.’ By Article 7 RTC, discrimination on the grounds of nationality only shall be prohibited.
The claimant, an LGTB activist, in which capacity he regularly travelled throughout the Caribbean region seeking to eliminate stigma and discrimination based on sexual orientation, contended that his rights under Articles 7 and 46 together with his right under the 2007 Conference Decision were being violated by the Immigration Acts of Belize and Trinidad and Tobago, respectively. Section 5 of the Immigration Act of Belize prohibits entry to ‘any prostitute or homosexual or any person who may be living or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behaviour. Section 8 of the Immigration Act of Trinidad and Tobago is in almost identical terms, prohibiting entry to ‘prostitutes, homosexuals or persons living on the earnings of prostitutes or homosexuals.’
In determining whether or not the existence of such laws breached the States’ obligations under the RTC, the CCJ was guided by the following four principles derived from the jurisprudence of international tribunals. First, there is no general rule that the enactment of legislation which conflicts with a State’s treaty obligations necessarily constitutes a breach of that obligation: much depends on whether and how the legislation, however interpreted, is applied. Second, in construing domestic legislation, an international is engaged in establishing the meaning of national law ‘as factual elements of state practice’ in order to check whether these factual elements constitute a breach by the State. This meant that other relevant aspects of State practice, such as administrative acts of the State, must also be taken into account. Third, while an international tribunal will give considerable deference to views of domestic courts on the meaning of its own laws it may itself, in appropriate circumstances, select the interpretation that it considers most in conformity with the law. Fourth, the burden of proving that the legislation breaches the State’s obligation lies upon the Claimant. This was always going to be a heavy burden for the Claimant to discharge since he had entered both Belize and Trinidad and Tobago on a number of occasion and had never been denied entry because of his homosexuality.
So far as Belize was concerned, the CCJ accepted the Government’s contention that a literal interpretation of section 5 of the Immigration Act should be avoided and that section 5 should instead be interpreted as targeting not homosexuals generally, but rather those persons who ‘may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behaviour.’ In the CCJ’s view, this was the most plausible interpretation, and was supported by evidence of administrative practice in Belize, which was not to refuse entry to persons based solely on their sexual orientation. Such an interpretation was also in accordance with Belize’s obligations under s64(1) of the Interpretation Act, which provides that in ascertaining the meaning of any provision of an Act, regard must be had inter alia to ‘any provision’ of the RTC and ‘community instruments issued under the RTC’, such as the 2007 Conference Decision.
So far as Trinidad and Tobago was concerned, the position was slightly different insofar it was conceded by the Government’s lawyers that section 8 of the Immigration Act classified homosexuals as prohibited persons and, therefore, on its face prohibited the Claimant’s entry. However, in the CCJ’s view this was not definitive. The domestic courts of Trinidad and Tobago had never pronounced on the meaning of section 8(1) and there was a sacrosanct rule that in common law jurisdictions such as Trinidad and Tobago statutory provisions should, if at all possible, be interpreted as compliant with the State’s treaty obligations.[27] In this respect there were a host of human rights materials which would support the domestic courts of Trinidad and Tobago to take a more liberal approach to the interpretation of section 8 than the one conceded by the Government’s lawyers. These included the United Nations Human Rights Covenant and the American Declaration of the Rights and Duties of Man, both of which recognise the human dignity of every person, as well as the ICCPR, which by Article 2 prohibits discrimination based on sexual orientation and which by Article 26 guarantees equality before the law.[28] The preamble to the Constitution of Trinidad and Tobago also affirms that the country is founded on the dignity of the human persons, while section 4 of the Constitution guarantees the right of the individual to equality before the law, and the right of the individual to respect for his private and family life. In addition, the CCJ had regard to the actual practice and policy of the Immigration Division of Trinidad and Tobago, which does not bar entry to homosexuals. In all these circumstances the CCJ concluded that the Claimant had not been able to demonstrate that he had been prejudiced in respect of the enjoyment of his right to free movement to the extent required under the RTC.
It is disappointing that the CCJ effectively condoned the existence of laws which, on their face at least, not only permit, but actively mandate discrimination on the basis of homosexuality. However, the CCJ’s acknowledgment that such laws were in breach of Trinidad and Tobago’s international obligations as well as its domestic constitutional obligations will be welcomed by LGBT campaigners in the region as a further step along their arduous journey towards achieving equal rights for gays and lesbians in the region.
V. Conclusion
If there is one theme which links the various constitutional events that have taken place in the region in 2016 it is the struggle of these former British colonies to reconcile their status as sovereign independent states with their colonial past. This is present in the controversy surrounding the replacement of the Queen as head of state by a non-executive President and in the controversy surrounding the replacement of the JCPC with the CCJ. It is also present in the failure of the Government of Grenada to secure the necessary two-thirds majority in a referendum required to amend its Constitution. The inclusion of such an impossibly high threshold was a colonial legacy included in the independence Constitution with the intention of preserving in perpetuity the system of government inherited from the former colonial power.[29] Even the laws which criminalise homosexuality that were the subject of constitutional challenge in Orozco were based on a Criminal Code introduced in Belize (then British Honduras) in 1888. The survival of such laws elsewhere in the region owes much to the saving clauses included in a number of the region’s independence constitutions which immunise existing laws against constitutional challenge even if they violate the fundamental rights and freedoms which these constitutions purport to guarantee. Some fifty odd years after independence, the region’s struggle against colonialism continues.
[1] Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, 1991).
[2] Though, formally, it is the Governor General as the Queen’s representative who dissolves Parliament, the convention is that the Governor General must act in accordance with the advice of the Prime Minister. See, for example, section 31(1) Constitution Jamaica.
[3] See http://jamaica-elections.com/general/2016/results/resultsummary.php accessed 15 February 2017 and http://www.electoral.gov.lc/past-results/election-night-results-2016 accessed 15 February 2017.
[4] For further information about the Bills see http://grenadaconstitutionreform.com/#Bills accessed 15 February 2017.
[5] http://nowgrenada.com/2016/11/results-grenada-constitution-referendum/ accessed 15 February 2017.
[6] http://antiguaobserver.com/government-keeping-its-term-limit-promise/ accessed 15 February 2017.
[7] See, for example, D Simmons, ‘The Caribbean Court of Justice’ (2005) 29 Nova Law Review 169.
[8] (n5).
[9] These include, in addition to Grenada, Antigua and Barbuda, The Bahamas, St Kitts and Nevis, St Vincent and The Grenadines and, arguably, Jamaica. See D O’Brien, Constitutional Law Systems of the Commonwealth Caribbean (Hart Publishing 2014) 219.
[10] See RW James and HA Lutchman, Law and the Political Environment in Guyana, (Institute of Development Studies University of Guyana, 1984) 61.
[11] http://today.caricom.org/2016/08/31/antigua-and-barbuda-ccj-referendum-set-for-next-year/ accessed 15 February 2017.
[12] See judgment of Eastern Caribbean Supreme Court of Appeal In the Matter of the Attorney General’s Reference SLUHCVAP2012/0018, 26 May 2013 (unreported).
[13] R Crilly, ‘Jamaica Unveils Plans to Ditch Queen as Head of State’ The Telegraph (16 April 2016).
[14] See http://www.bbc.co.uk/news/world-latin-america-16449969 accessed 15 February 2017.
[15] Constitution of Jamaica, section 49(3).
[16] T Brooks-Pollock, ‘Barbados Wants to Ditch the Queen on the 50th Anniversary of its Independence’ The Independent. http://www.independent.co.uk/news/world/americas/barbados-wants-to-ditch-the-queen-on-the-50th-anniversary-of-its-independence-a6772571.html accessed 15 February 2017.
[17] (n4).
[18] In the Supreme Court of Belize, Claim No. 668 of 2010. Judgment 10 August 2016 (unreported).
[19] Caribbean Court of Justice CCJ Application No. OA 1 of 2013 and CCJ Application No. OA 2 of 2013. Judgment 10 June 2016 (unreported).
[20] (App No 7525/76) (1982) 4 EHRR 149.
[21] See C Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford University Press, 2007).
[22] [1999] 1 SCR 497.
[23] [1999] (1) SA 6.
[24] Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/448/1992.
[25] [94].
[26] Similar clauses are to be found in the Constitutions of Trinidad and Tobago, Barbados and the Bahamas.
[27] Salomon v Commissioners of Customs and Excise [1967] 2 QB 116.
[28] Toonen (n24).
[29] See D O’Brien, ‘Formal Amendment Rules and Constitutional Endurance: the Strange Case of the Commonwealth Caribbean’ in Richard Albert, Xenophon Contiades an Alkmene Fotiadou (eds) The Foundations and Traditions of Constitutional Amendment (Hart Publishing, forthcoming 2017).
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