‘HOGWASH!’

In a striking broadside against the UK Privy Council, law experts from across the region questioned Jamaica’s continued clinging to the London-based appellate court, asserting that the CARICOM country continues to “loiter on the premises of the colonial masters”.

The position dominated discussions at a public reasoning symposium about the Caribbean Court of Justice (CCJ), where lawyers dissected arguments for and against Jamaica’s accession to the region’s apex court.

Fifty-nine per cent of Jamaicans in a recent RJRGLEANER Communications Group-commissioned poll said that the country should replace the Privy Council, while 23 per cent opted for its retention.

Eighteen per cent said that they were not sure about the polarising subject.

On Thursday, King’s Counsel Larry Smith called aversion to Jamaica joining other CARICOM countries in having the CCJ as its apex court “disturbing”, amid reasons listed such as trust deficit and corruption concerns.

“It’s hogwash! It’s what my late father would call high-class nonsense. It’s foolishness!” the Barbadian asserted, while speaking at the symposium held at the Faculty of Law at The University of the West Indies, Mona.

He added: “Listen to what we are saying about ourselves. That is what is so disturbing. What are we saying about ourselves? That we cannot stand in judgment of ourselves?”

ACCESS CRITICAL

He said that the argument must go beyond this to what do governments want to deliver for citizens.

Smith said what must be ensured is that the widest cross-section of the Caribbean society has access to justice.

It is one of the reasons senior counsel Magali Marin-Young, who in June demitted office as attorney general in Belize, said that country joined the CCJ in 2010.

“I don’t think that there is any Belizean to date that has any regrets about us joining the CCJ. I can only speak of pluses because that’s been our experience,” she said.

She said the impetus for Belize to join was buoyed by access as well as national pride and dignity after then president of the United Kingdom’s Supreme Court Lord Nicholas Phillips signalled that Commonwealth countries needed to establish their own apex court.

“He had, in a very patronising speech, I thought, said that the Privy Council is providing this service free of cost to the Commonwealth and that their judges were spending a lot of time clearing cases from the Commonwealth, diverting precious judicial time away from their own legal reforms and modernisation,” Marin-Young noted.

Since cutting ties with the appellate court, which was averaging one appeal per annum for Belize, she said the number has gone up with more Belizeans having access to the CCJ. She cited cost as the single prohibitive factor.

Between 2016 and 2021, the Privy Council delivered 20 judgments on appeals from Jamaica, CCJ Judge Winston Anderson disclosed.

By contrast, during the same period, the Jamaican said the CCJ delivered 43 judgments on appeals from Barbados; 28 from Belize and 52 from Guyana.

Between 2005 and 2023, the CCJ delivered 308 judgments.

“There are a number of things that have suggested to me that the law lords are spending much less time and giving much less attention to Privy Council appeals … ,” King’s Counsel Michael Hylton said.

The Privy Council is listed to hear three appeals from four countries this court term, Hylton revealed, when compared to the 22 it heard for the similar period last year.

The constitutional lawyer noted that in most jurisdictions, and especially in Jamaica, the Privy Council has not delivered judgments but instead advice.

“It is a matter of policy that you don’t do dissenting judgments and you don’t do unnecessary incursions into setting precedent, save for constitutional cases. Generally speaking, they avoid doing what apex courts should do, which is develop the law.

“They are advising Her Majesty or His Majesty on matters before then. There’s a reason why the CCJ judgments go in depth in a way that the Privy Council do not,” said Hylton.

GOV’T TO STATE STANCE

Early October, Minister of Legal and Constitutional Affairs Marlene Malahoo Forte said that there “is and should be no disagreement, that it is unacceptable and untenable, to continue with an arrangement where Jamaicans need a visa to access their final court”.

She said Prime Minister Andrew Holness is to update the country on the Government’s position amid discussions of constitutional reform.

The issue has been thorny, with Holness indicating in the past that Jamaica adopting the CCJ as its final appellate court must be settled in a referendum put to Jamaicans, who decades ago decided against regional integration.

Meanwhile, Opposition Leader Mark Golding has warned that his side will not support the removal of the British monarch as head of state without the simultaneous removal of the Privy Council as Jamaica’s final court.

kimone.francis@gleanerjm.com