LEFT: Delroy Chuck
RIGHT: Justice Marjorie Cole-Smith inspecting a Police Guard of Honour in front of the Supreme Court building, downtown Kingston on April 14, 2004 at the official opening of the Easter session of the Home Circuit Court. Immediately behind her is Reverend Canon Weeville Gordon, Custos of Kingston. They were escorted by Deputy Superintendent Howard Francis, in charge of the parade, and Superintendent Claude Wilson, in charge of the Kingston Central Division. -Winston Sill photo
Delroy Chuck
THE RULING of the Judicial Committee of the Privy Council (JCPC) that the three Parliamentary acts to abolish the right of appeal to Her Majesty in Council and to substitute the Caribbean Court of Justice (CCJ) as the final court of appeal were unconstitutional was a victory for good sense and good law.
The decision of the JCPC reaffirmed, once again, especially to those who believe our Parliament is supreme and sovereign and the law is not a shackle, that the Constitution of Jamaica is the supreme and fundamental law of the land. The decision in Privy Council No.41 of 2004, delivered on the February 3, 2005, is a landmark decision of monumental importance that has reinforced and enhanced constitutional authority, the rule of law and, hopefully, good sense in the process of constitutional reform.
The five law lords were unanimous in their decision and, as I understand, to everyone present at the hearing, from their questioning of the attorneys representing the parties, the result was patently obvious and expected. The fact that the lower courts here in Jamaica came to a different conclusion is of great concern and much speculation.
A SIMPLE ISSUE
The JCPC had to decide a simple issue. Could the Parliament of Jamaica by simple majority create a final court of appeal superior to the Supreme Court of Jamaica and the Court of Appeal, without that final court being at least entrenched in the Constitution?
Section 110 of the Constitution provides for appeal to Her Majesty In Council and is not an entrenched section, which means it can be removed by a majority of members of both Houses of Parliament. While it could be removed without more, could it be altered without affecting entrenched sections of the Constitution?
The significant fact that the JCPC itself was not entrenched and therefore a similar court could replace it, gave comfort and substance to the government, its advisers and the lower courts in Jamaica that the process was lawful and constitutional. In essence, the JCPC can be easily removed, a fact that was conceded by Dr. Lloyd Barnett who was the lead counsel for the appellants.
Admittedly, there are many attorneys who argue that the right of appeal to Her Majesty in Council had attained the status of a prescriptive right and should only be removed by the consent of the people but that point was not argued and, in the light of the decision and its effects, is not of any further importance. The real issue was: Could Section 110 be altered to introduce a new final court of appeal, which is what the government tried to achieve? It is at this point I believe the government and its advisers got it wrong. They have only themselves to blame.
If the government advisers and the lower courts in Jamaica had only advised themselves properly, listened to the compelling arguments of the Opposition and civil groups and given due consideration to the decision of the JCPC in the gun court case of Hinds v. The Queen, they would not have gone astray. In Hinds' case, the law lords held that the Parliament of Jamaica could not create a new, unentrenched court of a similar or higher status than the existing entrenched courts.
Any such court would have to be entrenched and the judges would need similar constitutional protection and security of tenure as the judges of the Supreme Court and Court of Appeal. But, even if the members of the Senate and the Parliament had not read Hinds v. The Queen, the speeches of the members of the Opposition would be ringing in their ears and to the effect that it is not right to have an unentrenched final court exercising jurisdiction over the entrenched Supreme Court and Court of Appeal.
The former Leader of the Opposition, the Most Honourable Edward Seaga in making his contribution on May 13, 2003, noted that the Government intended to establish the CCJ by simple majority and added: "It is fraught with danger and is self-defeating. Such a court can have no
permanency as, by the same simple majority, Jamaica's participation can be withdrawn. In these circumstances, a court of this nature would be vulnerable to real or perceived threats of dissolution, leaving it open to fear and favour. The strength of the highest court must rest in its impregnable position from all conditions which can unduly influence it. This can only be assured by entrenching its position in the Constitution so that it cannot be affected by a simple majority vote in Parliament for establishment or dissolution.
CREDIBILITY AND THE CCJ
The impact on the credibility of a Caribbean Court of Justice which is enacted by simple majority goes further. As the highest court of appeal in the system, it must have maximum protection for the security of tenure of its judges. This is not the case. Judges of the Jamaican Court of Appeal can be removed from office only by way of the elaborate provisions of section 105 of the Constitution which requires concurrence of the Privy Council. The section is entrenched, giving permanence to the protection it offers to judges. No such provision exists for judges in the Caribbean Court which is itself not entrenched. This is a highly undesirable condition which will expose judges in the CCJ to real or perceived threats of dismissal.
The spectre of the highest court in the system existing in a precarious structure while lesser courts enjoy constitutional permanence tells us that this perverted arrangement has been designed to fulfil a purpose regardless of the anomaly it generates and the abomination which it creates. It will carry the status, by reality or perception, of a weak, hybrid specie of a true court."
WRONG PROCESS
When I spoke in the final debate, I did so at length, warning the government that the process is wrong and that the courts would strike it down. I thought the matter was so simple, it would be settled in the lower courts here. I did not expect that the matter would go all the way to the JCPC. I said then: "Can a simple majority create a final court of appeal? As the leader of the Opposition has said, as well-thinking people in the society have said, it cannot. The Hinds case emphasised the point that, for courts to have equal jurisdiction with the Supreme Court and with the Court of Appeal, they must have security of tenure and be appointed in the same or similar manner to our judges of the Supreme Court and Court of Appeal.
The simple majority that will set up this Caribbean Court of Justice is setting up a court which cannot be permanent because another simple majority can remove that court.
As a matter of common sense and simple logic, to set up a court that is not secure, permanent and stable means that none of the judges there would have security of tenure similar to our Supreme Court and Court of Appeal judges. In those circumstances, it is quite clear in my mind that any CCJ judge and court that seek to exercise jurisdiction, even similar to our Court of Appeal, would be struck down as unconstitutional.
Delroy Chuck is an attorney-at-law and Opposition member of Parliament.
