Barbara Gayle, Staff ReporterTHE UNITED Kingdom-based Privy Council's ruling last week striking down the legislation to establish the Caribbean Court of Justice (CCJ) is being hailed as a landmark ruling.
But when the points of law determined by the Privy Council are analysed, one can easily come to the conclusion that the ruling is no landmark ruling at all.
It really is a simple point of law and if one even applies the common sense approach to it, one can see that the appellants were correct from the outset that the CCJ which is to be Jamaica's final appellate court, must have permanence by being entrenched in the Constitution of Jamaica.
If the Supreme Court and the Court of Appeal are entrenched in the Constitution of Jamaica, then why shouldn't the CCJ, which is to be superior to those two courts?
Citizens, including lawyers who were not involved in the legal battle in court, are saying that former leader of the Opposition, Edward Seaga, and the other appellants, should not have been put to great expense to take the issue to the Privy Council if the judges in Jamaican courts had given the correct interpretation to the authorities cited.
The case was first brought to the Supreme Court which refused to hear the merits of the case, despite lengthy submissions by Dr. Lloyd Barnett, one of the lawyers representing the
appellants.
FUNDAMENTAL POINT
Government lawyers were successful in the preliminary point they took before the Full Court, that the proceedings were premature because the bills to establish the CCJ were not yet passed into law. The claimants were contending in the motion filed in the Supreme Court that the bills to establish the CCJ were unconstitutional because the court would not be a permanent one because it was not entrenched in the constitution. The bills were subsequently passed into law.
Although the Court of Appeal heard the merits of the case, the judges failed to follow the simple interpretation of the constitution as laid down by the United Kingdom Privy Council in the Jamaican case of Hinds versus the Queen which laid down guidelines to be followed when the
Legislature attempts to set up any court superior to the Supreme Court and Court of Appeal.
The nation's judges are the guardians of the law and, in particular, the constitution, which is the supreme law of the land and it is very disheartening when our judges miss such a fundamental point of law.
If the judges had interpreted the cases cited correctly then perhaps the case would not have gone to the Privy Council for a determination.
Attorney-at-law Bert Samuels described the Privy Council's decision in this simple fashion: "The Privy Council's decision can be viewed as an enforcement of the separation of powers between the legislature and the courts which decide on the laws made by that body.
So, when that final court is not deeply entrenched, a legislature which finds no favour with that court can easily remove it by a simple majority".
And the Privy Council, in its 15-page judgment, made the
following point which reinforces the functions of the courts when it said it existed to serve the interests of the people of Jamaica.
"Secondly, it must be understood that the Board, sitting as the final court of appeal of Jamaica, has no interest of its own in the outcome of this appeal. The Board exists in this capacity to serve the interests of the people of Jamaica. If and when the people of Jamaica judge that it no longer does so, they are fully entitled to take appropriate steps to bring its role to an end. The question is whether the steps taken in this case were constitutionally appropriate," the Privy Council said.
The Privy Council described the case as an appeal of obvious constitutional importance. It said that attorney-at-law Dr. Lloyd Barnett speaking for all the
appellants, roundly accepted that there could have been no objection to legislation supported by a majority of members of each House of Parliament which simply abolished the right of appeal to Her Majesty in Council and no more.
Referring further to Dr. Barnett's submissions, the Privy Council said Dr. Barnett accepted that the Parliament of Jamaica could validly have provided in effect, for the CCJ to take the place of the Privy Council as the ultimate court of appeal from the courts of Jamaica.
"But this latter object," he
submitted, "could not, consistently with the constitution, be achieved by ordinary legislation since it undermined certain provisions of the Constitution which were
accorded special protection and could thus be altered only by employing the procedure appropriate for altering such provisions."
Thus, the argument is not whether the Parliament of Jamaica had power to achieve the object it sought to achieve, but whether the procedural means of achieving it followed the
procedure required by the
constitution."
The Privy Council struck down the laws to establish the CCJ and made a declaration that the Judicature (Appellate Jurisdic-tion) (Amendment) Act 2004, the Caribbean Court of Justice (Constitutional Amendment) Act 2004 and the Caribbean Court of Justice Act 2004 were not passed in accordance with the procedure required by the constitution and are accordingly void.
The government will now have to adhere to the Privy Council's ruling and take steps to establish the CCJ in accordance with the Constitution of Jamaica.
