What we asked of the Privy Council
 
By Carolyn Gomes
Sunday, January 30, 2005
 
On December 14 and 15 of last year, lawyers for three civil society groups - the Jamaican Bar Association, Jamaicans For Justice, and the Independent Jamaican Council for Human Rights - appeared together with lawyers for the Jamaica Labour Party at a hearing before the Privy Council in England. The Government of Jamaica was also represented by a team of lawyers.

The ruling will have profound implications for all Jamaicans and may affect the timetable for the inauguration of the court and the establishment of the CSME   The organisations were challenging the process by which the Government of Jamaica was seeking to remove the right of appeal to the Judicial Committee of the Privy Council and to establish the Caribbean Court of Justice (CCJ) by simple majority.

The originally separate suits of the various organisations had been consolidated in the Supreme Court, the Court of Appeal and the Privy Council. The arguments had been worked out jointly and were presented by Dr Lloyd Barnett on behalf of all four appellants. The arguments and all submissions have been concluded and the Government of Jamaica and the four groups are awaiting the decision of the Privy Council.

The decision will affect all Jamaicans, and we think it is important that a clear explanation of what the Privy Council was asked to rule on be given to the people of Jamaica, before the judgement is delivered and the ruling becomes confused in political rhetoric of one kind or the other.

In 2000, Jamaicans For Justice (JFJ) published a brochure on the CCJ, setting out our position on the issues. These concerns remain as relevant today as they were then.

In that brochure we argued that the issues involved in the creation of a new final court of appeal were complex and should be fully discussed and debated via a process of public education. Then the public should be invited to make a decision as to if and when or whether we choose to replace the Privy Council as our final court of appeal with a Caribbean Court of Justice.

We also argued that for the court to have permanence and security of tenure (factors we considered essential for a final court of appeal) then the CCJ should be entrenched in the constitutions of all participating territories as a matter of treaty agreement. We had and have no objection to the establishment of a trade court as envisaged by the treaty.

Jamaicans For Justice also spoke in 2000 of the atrocious state of our courts, which we consider a national disgrace. We considered that justice must begin at home and that we must put our own house in order before going to borrow more money to establish new courts, particularly as many of our own courts are dilapidated, and lack basic amenities such as proper toilets.

Very little happened to address our concerns over the following four years, though the issues were raised both in the public arena and in meetings with the Government and JFJ, the Independent Jamaican Council for Human Rights and the Jamaican Bar Association (separately and together).

Jamaicans For Justice and others put on a few public education events but the Government seemed more intent on branding those raising concerns as 'closet= colonialists', or telling us to 'forget it', rather than on addressing the concerns raised or seeking to stimulate public discussion and consensus building.

In 2004, the Government of Jamaica laid three Bills in the Senate. The Bills, entitled an "ACT to establish the Caribbean Court of Justice", an "ACT to Amend the Judicature (Appellate Jurisdiction) Act" and an "ACT to Amend the Constitution of Jamaica" were attempting to remove the right of appeal to the Privy Council and establish the CCJ as the final court of appeal for Jamaica by the vote of a simple majority in Parliament.

If this process had been allowed to stand, it would mean that the court could be completely subject to the political whim and manipulation of the barest majority in the Parliament of Jamaica. This, we considered, could not be an acceptable position for a final court of appeal to be in.

This is the point at which JFJ and others took our case to the courts.  The substance of the arguments that were put to the Privy Council are as follows:

1. The Constitution of Jamaica is framed on the basis of the doctrine of the separation of powers, and that design is protected with respect to the judicial power by the entrenchment in Chapter VII of important provisions relating to the establishment of the superior courts, as well as the appointment, removal from office and security of remuneration and tenure of their judges;

2. The objective of the legislation (three different Bills passed in Parliament in November 2004) is to grant to the CCJ the same powers as the Supreme Court and Court of Appeal and jurisdiction over all matters within the jurisdiction of those Courts;

3. In so doing, these measures will have the effect of making the CCJ a superior court in Jamaica with Chapter VII judicial powers;

4. Neither the CCJ nor its judges will, by virtue of the agreement for its establishment and the ordinary legislative measures adopted for its implementation, have the critical protection given by the Constitution to the Supreme Court and Court of Appeal and their judges;

5. The vesting of the judicial power [which belongs to the superior courts] in any institution which is not protected by the entrenched provisions of the Constitution undermines the constitutional scheme and is, in substance, inconsistent with the entrenched provisions of Chapter VII;

6. The new legal and institutional arrangements for the exercise of the judicial power amount to an alteration or modification of or addition to the entrenched provisions of Chapter VII, which are designed to enshrine the doctrine of the separation of powers, the principle of the independence of the judiciary and, critically, the inviolability of the judicial function;

7. As a result, the legislative measures for implementing the agreement to establish the CCJ must conform with the special constitutional amendment procedure for the amendment of entrenched provisions;

8. Since the process for the passing of the Bills has not conformed with this special procedure, the Acts resulting therefrom are unconstitutional and void; and

9. The legislative measures in question are so interdependent that they should not be considered separately, as to do so would produce a result which does not accord with the legislative scheme and intent of Parliament.

At no stage was the Privy Council asked to rule for or against the merits of the CCJ as the final court of appeal for Jamaica (or indeed, as a trade court for the region). Nor was the Privy Council asked to rule for or against the retention of the Privy Council as Jamaica's final court of appeal.

What the Privy Council was asked to decide was the constitutionality of the process by which the CCJ was being established as the Final Court of Appeal for Jamaica.

It is therefore the issue of the process by which the Government of Jamaica was seeking to remove the right of appeal to the Privy Council and substitute a new final Court of Appeal (the CCJ) that has been ventilated in the Privy Council, and we await a ruling.

The ruling will have profound implications for all Jamaicans and may affect the timetable for the inauguration of the court and the establishment of the CSME.

If the Privy Council finds against the appellants and decides that the Government has the legal and constitutional freedom to establish a final court of appeal by simple majority, JFJ feels we will still have won a victory for the processes of governance in Jamaica.

We feel we would have demonstrated that citizen involvement in decision-making is crucial and that one can and must use all the constitutional structures allowed to us as citizens for having our voices heard and for having issues ventilated and settled.

We will be proud of our refusal to 'forget it' and feel secure that our stance on this issue was not for the retention of the vestiges of colonialism (horse-hair wigs for lawyers, etc), but for the proper processes of governance and citizen empowerment being followed because we are fully capable of getting it right.

If the Privy Council rules in favour of the four appellants, then the Government of Jamaica will be forced to withdraw the Bills that were passed late last year and to go through a different constitutional process for establishing the court.

This, depending on the ruling of the Privy Council, may involve going through the special entrenchment process or the deep entrenchment process as established by the Constitution.

Whatever the legal niceties of the constitutional process that the Privy Council decides is to be followed, JFJ is convinced that on a matter as singularly important as the establishment of a new final court of appeal, the people should be consulted.  How to accurately reflect that consultation in the final process is a matter for intense and informed discussion.

One further point of clarification may be important to make here in terms of what may be said to be the effect of a ruling in favour of the appellants by the Privy Council. More than two years ago, the governments of Caricom were urged to seek to establish the trade court (that is the non-appellate part of the jurisdiction of the CCJ) needed for the CSME separately from the final court of appeal (appellate jurisdiction of the CCJ).

This course was recommended to them as being easier and more appropriate and as a course of action to which no controversy was attached.

Unfortunately, the governments of Caricom chose to ignore this advice. If the Privy Council rules against the process which the Government of Jamaica is using to establish a new final court of appeal, it will affect and delay the establishment of the CSME, mainly because of these governments' refusal to listen to sound advice, and not because of the actions of those objecting to the unconstitutional process which the Jamaican Government sought to use to establish a final court of appeal.

Whatever the ruling from the Privy Council in the next few weeks, we must, as Jamaicans, remain fully engaged in all the processes of governance in our country.

It is not enough to throw up our hands and say 'me one caan do nuttin', or give away our power by only voting for a representative at election time, then taking our hands off the steering wheel. We would do well to remember the words of Thomas Jefferson: 'Dissent is the highest form of patriotism'.

Carolyn Gomes is executive director of Jamaicans For Justice