Marshall Burnett Commentaries: 1

The Privy Council and the CCJ: Understanding the judgement

published: Sunday February 13, 2005

Source: Sunday Gleaner, Kingston, Jamaica

NICHOLSON: "The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and conscientious endeavour to create a new regional court of high quality and complete independence..."

ON THURSDAY February 4, the London-based Privy Council issued its judgment in the case of The Independent Jamaica Council for Human Rights et al v. The Hon. Syringa Marshall-Burnett and the attorney-general of Jamaica. In this case, the central question was whether the procedure adopted by the government in enacting legislation on the Caribbean Court of Justice (CCJ) met the requirements set out in the Jamaican Constitu-tion. The case is therefore popularly referred to as the CCJ Case.

RULE OF LAW

Naturally, the decision of the Privy Council has already prompted a significant level of public commentary, as befits a healthy, vibrant democracy. In this article, I wish to outline the main issues considered by the Privy Council, and consider aspects of the reasoning of Jamaica's highest court. From the outset, though, I should reiterate that the government believes strongly in the rule of law and constitutional governance, and that, consequently, there can be no doubt that the decision of the Privy Council will be implemented.

In the CCJ Case, the Privy Council considered three acts of Parliament designed to abolish appeals to the Privy Council and to substitute appeals to the Caribbean Court of Justice in place of appeals to the Privy Council. The acts considered by the Privy Council also sought to establish the Caribbean Court of Justice as a court of original jurisdiction to hear cases concerning the interpretation of the treaty establishing the CARICOM Single Market and Economy (the CSME).

In reaching its decision on whether the three acts of Parliament were constitutional, the Privy Council paid considerable attention to the structure of the higher courts in Jamaica, namely, the Supreme Court and the Court of Appeal. The Privy Council emphasized that these higher courts are entrenched within the Constitution, and, in particular, that certain provisions designed to safeguard the independence of judges are protected by entrenchment.

SPECIAL PROCEDURE

Where a provision is entrenched in the Jamaican Constitution, this means that a special procedure needs to be followed for that provision to be changed. So, the Constitution indicates that entrenched provisions can only be changed by a two-thirds majority of the members of both Houses of Parliament, and that certain time constraints need to be respected.

The Privy Council noted that as the final court of appeal for cases from Jamaica, the Caribbean Court of Justice would hear appeals from our Supreme Court and Court of Appeal. Their lordships also observed that the Caribbean Court of Justice, as contemplated under the three acts of Parliament, would not be entrenched in the Jamaican Constitution. They then reasoned as follows:

"The Constitution seeks to protect the independence and security of tenure of judges of the Supreme Court and the Court of Appeal, by entrenching certain provisions about these courts;

"If Parliament creates a court that can overrule decisions of the Supreme Court and the Court of Appeal, and that court is not similarly entrenched, this would be tantamount to amending the entrenched provisions concerning the Supreme Court and the Court of Appeal;

"It therefore followed that any legislation creating such a court would have to be enacted following the procedure which would have had to be followed if those entrenched provisions were being amended;

"Consequently, the three acts were not validly passed because they did not follow the procedure for amending entrenched provisions of the Constitution."

QUALITY

By this line of reasoning, therefore, the Privy Council struck down the three acts of Parliament. In doing so, however, their Lordships noted the nature of the effort that has so far gone into the establishment of the CCJ. Referring to themselves as the Board, they observed:

"The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and conscientious endea-vour to create a new regional court of high quality and complete independence, enjoying all the advantages which a regional court could hope to enjoy."

They also noted that the acts in question did not, singly or cumulatively, weaken the constitutional protection enjoyed by the higher judiciary in Jamaica. Their concern, however, was that the acts gave rise to the risk that governments could amend the CCJ Agreement, and thereby undermine "the protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution."

One additional aspect of the judgment may be mentioned briefly. The Privy Council has not challenged the view that appeals to the Privy Council may be abolished by a majority of all the members of each House of Parliament. As the Privy Council notes, Section 110 of the Constitution, which addresses the place of the Privy Council in our judicial system, is not entrenched. In the view of the Privy Council, therefore, the repeal of Section 110, without more, would not weaken the protection to be given to the people of Jamaica.

The Most Honourable Prime Minister has indicated that the Jamaican government will be consulting with its CARICOM partners as to the way forward, particularly in regard to arrangements for the Single Market and Economy.

It is reported that the Opposition JLP wishes to meet with the govern-ment for consultations on this matter; the government would like this to happen so that we can formulate appropriate solutions for the future of the justice system in Jamaica.

A.J. Nicholson Q.C. - (former) Attorney General and Minister of Justice- Jamaica