Donovon Jackson, ContributorAS THINGS stand the three Bills on the Caribbean Court of Justice (CCJ) are to be passed by the Lower House before Parliament goes on summer break this year. They have already been passed in the Senate.
An undertaking has been given by the learned Attorney-General in the Court of Appeal for enactment of the Bills to be delayed until at least November 1, 2004. It is uncertain whether the Privy Council Appeal can be heard by then and an application to preserve the status quo could become necessary if the Appeal is not heard before then and the Attorney General refuses to extend the undertaking and intends to enact the Bills.
If the Privy Council hears the matter and rules that one or more of the Bills are in law unconstitutional in some material aspect, would irreparable harm result and where would we stand in all the circumstances?
ENACTMENT
If the Bills are not brought into effect by enactment, no harm would result, despite passage, as the Bills would not become operational. If the Bills are enacted the result is quite different. The Appeal Court has ruled that while the tabling of the three 'CCJ' Bills constituted "exceptional circumstances" such as would entitle a court to intervene, prior to passage of the Bills.
The latter ruling was surprising as with such a view of the exceptional nature of the case which was not so found by the Full Court on the preliminary point, one had anticipated a remittal of the matter to the Full Court for the merits of the case to be heard. The Court of Appeal felt otherwise and remarkably, the matter has reached as far as the Privy Council without the court having formally dealt with the merits of the application.
Recently the Privy Council in Grant vs. DCS and DPP re-confirmed the commonly held view that the avenues of appeal to the Privy Council can be removed by ordinary legislation by the removal of Section 110, which on the face of it is 'un-entrenched'. This raises a dilemma for claimants. If you wait until the Bills are passed and enacted and then bring an action the Privy Council will hear you but may only be able to say: "sorry we have been lawfully abolished, best of luck old chap"?
In the scenario of the existing claims, if a 'preservatory' order cannot be secured before November 1, 2004 and an appointed day is given by the Attorney-General immediately after November 1, 2004, eventually, the Privy Council will hear you but may only be able to say on a best case scenario that: the CCJ's Appellate jurisdiction is unconstitutional" however, "we have been lawfully abolished, best of luck old chap"? This would leave us in the unfortunate position of having unwittingly created a final Court in the existing Court of Appeal in Jamaica. And here I make no comment on the ability and worth of the existing Court.
What is transpiring is that the legislature has been presented with three Bills as a composite scheme. They have been requested to vote to enact the three Bills on the basis that the CCJ will be substituted in place of the Privy Council to hear final appeals.
At best the legal authority for this is unclear as while you may well be able to remove the right of appeal to the Privy Council by ordinary legislation at which point, albeit momentarily, the Court of Appeal becomes the final Court; thereafter, how do you Constitutionally impose some other Court to sit in review of the Court of Appeal except by the process laid down for this under the constitution? There is no power in the constitution to substitute such tribunal as the Government desires. Members of the legislature will therefore vote on the three Bills presented based on the presumed constitutional legality of this composite scheme.
Neither the members of the Legislature nor the public have being presented with a scheme to remove the Privy Council in any event. If it is the case, that the abolition of the Privy Council were to succeed in law, and the imposition of the CCJ were to fail in law, the acceptance of any such scenario would be in breach of every known democratic principle as the passage of the particular Bill removing appeals to the Privy Council would therefore have achieved the result of establishing the CCJ as Jamaica's final Court of Appeal, albeit unconstitutionally.
In the end, the very protection offered by the Constitution by entrenchment is completely lost if ordinary legislation were permitted to empower the CCJ to sit in review of Jamaica's Court of Appeal. Why entrench any arm of the judiciary in a structure where the highest tribunal can so easily be replaced by ordinary legislation? The acceptance of the current process would mean that any sitting Government can by ordinary legislation passed by a simple majority in Parliament, abolish the right of appeal to the CCJ and submit the decisions of Jamaica's Court of Appeal to the final appellate jurisdiction of some other Tribunal?
To detractors, the answer may seem clear, "how could it possibly be". Supporters however contend that the Privy Council judges were entirely outside the control of Jamaica and enjoyed no protection and no oversight from this quarter, so on what basis could one raise a complaint when the Government seeks to engage us with the CCJ which when examined contains on the face of it a 'well-intentioned' appointment process in the form of a Regional Judicial Services Commission.
Don't get me wrong I am for the CCJ in principle, but I am of the view that we must do it by the proper process, anything less is the 'thin edge of the wedge' entitling those less well intentioned to have their way with us in the future. Done in the manner proposed it is in effect a dismantling of the Constitution and is ill advised, however expedient it might appear to proponents.
CHANGING VIEWS
Ultimately, the Privy Council will decide and depending on how badly they want to see our backs may be at their most creative. They have been known to change their view of the law, remember Pratt & Morgan and Neville Lewis, which decisions were both welcomed and criticised depending on the perch from which you viewed it.
I readily concede that significant improvements have been made to the original draft documents to establish the CCJ and it is a pity that it has and continues to engage this country in acrimony. Without a fulsome acceptance of the Court we guarantee trouble at the first sign of an unfavourable or troubling decision or two.
