Delroy Chuck, Contributor
The following is the second of a two-part series on the Caribbean Court of Justice (CCJ).
Similar sentiments were expressed by other contributors in the Lower House and by the Opposition senators in the Upper House. Yet, the government was not prepared or amenable to the powerful arguments addressed in the Houses of Parliament. It had the majority and intended to use it in true Machiavellian style that the end can justify the means. The government had given its commitment to establish the CCJ and was determined to abolish the JCPC, and thus, was not opened to any rationale, or sound argument, or strong opposition to its declared purpose.
When one listened to the speeches in the Houses of Parliament, it was quite clear that the government members felt that the Opposition was being unfair and obstreperous, especially with our insistence that the people in a referendum should decide the matter. The Opposi-tion felt then as it does now that the matter is of such great constitutional importance and affects the whole constitutional arrangement with regards to the highest court of the land, that it is altogether right and makes good sense that the people should decide the issue, and not the elected or selected members of Parliament.
THE CONSTITUTION IS SOVEREIGN
In declaring the three CCJ Acts unconstitutional, the JCPC made some telling observations, which are worth emphasising, as far too many of our commentators seem to go awry when they argue that the country and its Parliament are sovereign, and therefore should be allowed to get on with its business without any interference.
The JCPC asserted: "While it is true, as Lord Diplock explained in Hinds vs. The Queen , that certain important assumptions underlie constitutions drafted on what he called the Westminster model, it is also true that when the people of Jamaica adopted their Constitution as an independent nation in 1962, they made certain very significant departures from the constitutional practice of the United Kingdom. The governing institutions and practices of the nation were identified and stated in a single instrument, the Constitution."
That Constitution, the JCPC emphasised, was to be the supreme law, and by section 2, was to prevail over every other law that was inconsistent with it. Thus, the law lords concluded: "the Constitution, and not as in the United Kingdom, Parliament, is to be sovereign."
The real and clear danger that had been emphasised by commentators, attorneys and the Opposition, was to the effect that if Parliament could create a new final appellate court, it would endanger the whole judicial and legal process, as any future Parliament could create a court to its own choosing.
THE REAL DANGER
And, that is exactly the danger that the JCPC identified and provided one of the main pillars for coming to its ultimate decision. Thus, the JCPC noted: "Adopting the language of Viscount Simonds in Attorney-General for Australia vs. The Queen, echoed by Lord Diplock in Hinds, Dr. Barnett said that it would make a mockery of the Constitution if the safeguards entrenched to ensure the integrity of legal process in Jamaica, could be circumvented by creating a superior court enjoying no such constitutional protection.
He referred to Minister of the Interior vs. Harris as a case in which a malign government, vexed by a decision of the Appellate Division of the Supreme Court of South Africa, had established a superior High Court of Parliament to neutralise some of its decisions."
No doubt, the government felt it had secured sufficient safeguards and protection in the CCJ Treaty, and further, that since the Privy Council and its judges were not entrenched, to replace it with a similar court could not be impeached.
But, the government was wrong, and the JCPC met the argument head on, when it adopted the submission of Dr. Barnett: "It was no answer to point to the safeguards contained in the CCJ agreement, since these enjoyed no constitutional protection in Jamaica, and could in any event be amended by agreement of the parties to the agreement, followed by ratification, both of them executive acts taking effect in Jamaican law on no more than affirmative resolution.
Nor was it any answer to point out that the right of appeal to the Privy Council was not entrenched in the Constitution, since that was an existing right; the independence of the Privy Council and its imperviousness to local pressure had never been in doubt, and it was not clear how the framers of the Constitu-tion could have entrenched the independence of members of the judicial committee had they wished to do so."
In declaring the three CCJ Acts unconstitutional, the JCPC struck a mighty blow for constitutional authority, and even while noting that "the risk that the governments of the contracting states might amend the CCJ Agreement, so as to weaken its independence is, it may be hoped, fanciful", the JCPC recognised its duty and the role of constitutional authority when it declared: "But an important function of a constitution is to give protection against governmental misbehaviour, and the three acts give rise to a risk which did not exist in the same way before. The board is driven to conclude that the three acts, taken together, do have the effect of undermining the protection given to the people of Jamaica by entrenched provisions of Chapter V11 of the Constitution."
WHERE DO WE GO FROM HERE?
From this, it follows that the procedure appropriate for amendment of an entrenched provision should have been followed."
The government is clearly in a mighty dilemma and a real quandary. Its arrogance has been rightly checked. It must now seek cooperation and better advice than hitherto obtained.
The Caribbean Single Market and Economy (CSME) beckons, and a mechanism needed to resolve disputes. All participating countries in the CSME have adopted the CCJ as the relevant body with an original jurisdiction to govern the treaty. With respect to Jamaica, the CCJ even in its original jurisdiction cannot be more than a quasi-judicial tribunal, as it cannot have the same status as any court here without being entrenched, and its judges would not have the same authority.
Still, the Jamaican Govern-ment could adopt the CCJ as a tribunal, commission, trade court, or some other name with a status less than a judicial court, and continue in the CSME.
With respect to the JCPC, it seems that it will be with us for some time, as it would be sheer malice and arrant arrogance for the government to remove it by deleting section 110 of the Constitution without putting in place a constitutionally protected final appellate court. The CCJ can become entrenched, but it seems that it would only be able to do so through a referendum.
To be sure, the Opposition and the government can agree to entrench the court by the two-thirds majority needed in both Houses of Parliament, but it would be downright treachery if the Opposition should now consent to a mere parliamentary approval when it has always felt that the matter is of such fundamental importance that the people must decide.
SUPPORT FROM THE OPPOSITION
For those who wonder how the present Opposition is thinking, let me quote from some of their speeches in Parliament.
Senator Bruce Golding said: "I support the CCJ subject to all the concerns and stipulations that I have mentioned here. What I am not supporting is a CCJ that is going to be put in the Constitution in such a way that any day a prime minister gets up and feels that it has trampled on the sovereign right of Parliament, he can do something about it. Only a decision by way of a referendum can inspire confidence that whatever decision is taken, will be honoured by a future government. And I have no hesitation in saying that this sentiment stretches right across this aisle."
