Editorial | Privy Council’s right move

We note the Privy Council’s decision to abandon a proposed rule that would further narrow the access of Jamaicans to their final court. This action, on its face, appears to be an acceptance by the law lords, so-called, that the controversial Rule 23 would have infringed Jamaica’s constitution, or come close to doing so.

But while the court’s reconsideration of the rule is welcomed, the fact that it was ever considered at all, and that the reversal came so late in the day, highlights two disturbing features of the court: the physical and psychological disconnectedness the local bar has with it; and how that that estrangement – despite the recent efforts by Lord Reed, the court’s head, to bridge the gap – is shared by the court’s judges.

But what is perhaps even more egregious in the face of the Privy Council’s retreat, is that Jamaica’s justice minister, Delroy Chuck, saw no problem with what the apex court intended to do. Sifting cases, Mr Chuck said, was common for appellate jurisdictions – an observation he apparently made without reference to the Privy Council’s obligations when it sits as Jamaica’s final court.

Based in London, the Privy Council is the final court for around a dozen Commonwealth countries, a holdover from their time as colonies of Great Britain.

On April 15 the Privy Council opened consultations on a raft of new rules, and announced that its stakeholders would have until May 17, merely a month, to respond.

DIDN’T ENJOY PERMISSION

Under the contentious Rule 23, an appeal that didn’t enjoy permission from the Privy Council to go forward (but was in its dockets because “the court below has exercised its discretion to grant permission, or because the appeal is an appeal of right for which the court below has granted final leave to appeal”) would first be reviewed by a single Privy Council judge to determine its merit to proceed.

If that judge wasn’t satisfied with the case’s merit, the appellant would have 21 days to file submissions of why it shouldn’t be “dismissed without hearing on the grounds that it is devoid of merit”. A three-member panel would review those submissions, without an oral hearing.

Current Privy Council rules require a minimum of four judges to hear full-blown cases, but the boards are usually of five.

The proposed rule appeared to be in conflict with Section 110 (1) of Jamaica’s Constitution, which says: “An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council as a right in the following cases –

(a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of one thousand dollars or upwards, final decisions in any civil proceedings;

(b) final decisions in proceedings for dissolution or nullity of marriage;

(c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution; and

(d) such other cases as may be prescribed by Parliament.”

POSSIBLE IMPLICATIONS

Merely a week before the Privy Council’s deadline for closing its consultation, when this newspaper reported on the possible implications of Rule 23, the Jamaican bar appeared largely oblivious of the court’s proposal. Subsequently, however, there was a flurry by local legal groups, including an assembly of Kings Counsel and the Jamaica Bar Association (JBA), in writing to the Privy Council with objections.

The court announced its withdrawal of the problematic clause on Thursday, the day after the JBA said that it was told of the decision by Privy Council officials during a virtual meeting.

The entire issue again emphasises a kind of cultural bastardy in which the judicial players in the provinces exist, in relation to the administrative and operation centre of the Privy Council in London. It is another reason for Jamaica to end its loitering on colonial premises and accede to the civil and criminal jurisdiction of the Caribbean Court of Justice (CCJ).

It is to the credit of Lord Reed and his judges that they came to recognise the potential of Rule 23 to infringe on the constitution, even when that danger, having been pointed out, was being dismissed by key policymakers.