Delroy Chuck THE STATED intention of the government to remove the right of appeal to the Judicial Committee of the Privy Council (JCPC) without consulting the people is repugnant and wrong. It demonstrates that the government does not trust the people and, if so, why should the people trust the government? The government can certainly stick to the view, and the strict letter of the law, that the Jamaican Constitution provides for the removal of Section 110 by a simple parliamentary majority but where the issue is contentious and involves a fundamental change in the structure of government, I would argue that the spirit, dignity and harmony of the Constitution are breached if the consent and opinion of the people by referendum are denied.
I contend that the government does not have the authority to eliminate a constitutional right, entitlement or expectation without the consent of or consultation with the people. As a matter of simple law and common sense, where anyone enjoys a right or benefit, then it cannot be unilaterally removed. In fact, courts of law by a process of estoppel, regularly prevent powerful parties, such as employers and landowners, from denying long standing rights and benefits enjoyed by weaker parties, such as employees and land users. Similarly, a key issue in the Caribbean Court of Justice (CCJ) debate is whether the right of appeal to the JCPC is now a protected right and benefit in the wider provision of the due process of law and administration of justice guaranteed by the Constitution.
ARE THE PEOPLE TO BE DENIED?
Since independence, the people have enjoyed rights of appeal to the JCPC. This expectation and entitlement to take legal matters to the highest court of the land is part and parcel of the legal process enjoyed by every Jamaican citizen. From my young days up to now, the people feel that if they cannot get justice in Jamaica, then they will take the matter to England. Are the people to be denied this right, opportunity and legal recourse? I have no doubt that the arguments to stop appeals to the JCPC are well founded but who decides that they should be stopped? Surely, the right of due process belongs to the people and they alone should have the power to yield and remove that constitutional provision. I daresay it is a matter that a court of law or the people may ultimately have to decide!
Then, another key related issue is the power of the legislature to set up a final court of appeal by a simple parliamentary majority. Conceding for the moment that a simple parliamentary majority can remove the JCPC, can a similar majority install a final court? I would argue it couldn't. The Constitution clearly recognises a legal line of authority, starting with a lower court at the petty sessions, the Magistrate's level, the Supreme Court, the Court of Appeal and finally the JCPC. When the Michael Manley Government initially sought to install a Gun Court with similar jurisdiction as the Supreme Court but without a judge of similar status as a Supreme Court Judge, the JCPC struck down the legislation as unconstitutional. Now, what sort of status will the judges of the CCJ have? At best, they can only have terms and conditions provided by a simple parliamentary majority, which can easily be changed or removed by another similar parliamentary majority, which means that their tenure of service is uncertain and insecure. How can such judges be empowered to supervise, overrule and control judges of our Supreme Court and Court of Appeal who are secured and protected by constitutionally entrenched clauses? Why should our Supreme Court judges respect the status and judgements of a court (CCJ) that could be here today and gone tomorrow?
TREADING ON
DANGEROUS GROUNDS
I daresay that the government is treading on dangerous grounds - having already destroyed the indigenous financial system and wrecked the economy - it now intends to do the unimaginable that is to bring the whole justice system into chaos, confusion and uncertainty. The principled position taken by well thinking members of the society, to have a referendum, is simply unimpeachable. If we are to remove the JCPC and to have another final court of appeal, let us do it right. Only by a referendum can all the arguments be finally laid to rest and a deeply entrenched court properly takes its place at the pinnacle of our judicial system. The government's argument that a referendum is not necessary to remove the JCPC may be right but it is certainly dead wrong that a referendum is not needed to create a permanent and constitutional CCJ. Wise voices in the society have spoken. Is the government listening?
Admittedly, another key issue is the need to set up a Caribbean trade court to settle disputes arising from the Caribbean Single Market Economy (CSME). But, why should this be tied to a final appellate court? In fact, the proposed CCJ is to act as a trade court with original jurisdiction and an appellate court with final jurisdiction. Is it not possible for the authorities to understand the inconsistency and nonsense to ask a litigant who is dissatisfied with the CCJ's ruling in the original jurisdiction to appeal to the CCJ in its appellate jurisdiction? Dishonestly, the government has tied the setting up of the CCJ as a final appellate court with the need to have a trade court within the CSME. Interestingly, countries such as Haiti, Surinam and Montserrat will only participate in the functions of the CCJ as a trade court, and so could Jamaica.
Ultimately, the people of Jamaica need to take control and send a masterly signal to the government that it must act with their consent. If the government will not listen to reasoned voices and principled arguments, then the people have a duty to use such lawful means, including peaceful protests and organised demonstrations, to assert, secure and protect their rights and freedoms under the Constitution.
Delroy Chuck is an attorney-at-law and Opposition Member of Parliament. He can be contacted by e-mail at delchuck@hotmail.com.
