PJ right on Privy Council, CCJ

Gordon Robinson

I first met Percival James Patterson, QC, in the early 1980s.

He had taken leave of politics after the PNP's 1980 electoral debacle and returned to law as a founding partner of Rattray, Patterson, Rattray. For this act of political treason, I understand he took a lot of flak from his political brethren.

Anyway, like all famous politicians, I had, in furtherance of my principles as a hermit, taken a hands-off social approach to P.J., hence met him only in court as an adversarial counsel, at which point I had no choice but to interact with him as a colleague. I was amazed at how good he was despite the ring rust that must have affected him on his return to advocacy. He was superb.

As a result, I struck up an excellent collegial relationship with him based (I hope) on mutual respect for our legal acumen and advocacy skills. We did other matters as adversaries and got on like a house on fire. I honestly can't recall the details of the matters or who won (so it must have been him), but I recall my bitter disappointment when, after the 1989 election, he left law and returned to politics.

In my opinion, and I said so at the time to The Old Ball and Chain, he was wasting a gift from God. Had he continued, I have no doubt he would have been one of our all-time greats. He coulda been a contender.

We rarely spoke during his political years, as I deliberately avoided him (as I do every famous politician), but, on the odd social occasion that we did speak, he was always the same P.J. Patterson I had known in the courts. He was not prime minister or CARICOM chairman. We never spoke of politics. We talked about cricket, law, or whatever.

He is a gentleman and a scholar and I admire him as such. Whoever wants to say different from some air-conditioned radio studio doesn't know the man. They believe the legend.

BRILLIANCE AND CLARITY

So, when I heard the Jamaican Bar Association (JAMBAR) had invited him to be guest speaker at a special dinner on November 15, I paid my fee two months in advance; forced Old BC into two girdles; and we tootled off to MoBay for the primary purpose of attending the dinner. Of course, you all know the result. Between JAMBAR and the so-called 'Hotel', we were not on the list of persons qualified to enter the dining room, hence I lost my opportunity to hear him.

However, by the following morning, I'd secured a hard copy of the speech and have subsequently obtained a soft copy as well.

THIS is the P.J. Patterson I know. There wasn't a shred of politics in the speech. The only indicators of motive discernible were what I consider to be the two key ingredients of a great lawyer. The first is a masterful command of the English language. The second is the ability to think clearly. He spoke on the burning issue of the Privy Council. He said:

I was present at that conference when the Organization of Commonwealth Association first called for the establishment of a Caribbean Court of Appeal 'in order to sever the last remaining vestiges of dependency'. The case was posited on three strong pillars:

(i) Final judicial determination by the Privy Council was inconsistent with our sovereign independence;

(ii) It was an impediment to the development of Caribbean jurisprudence;

(iii) We had enough persons of character, learning and integrity in our communities to provide competent judges for a court of final adjudication.

The reasons advanced were convincing then and have become the more compelling now with:

The [UK] visa requirements for counsel and litigants to enter.

The complaint of English judges about their workload and the added burden resulting from a huge increase in cases from the Caribbean.

I could never have anticipated that 43 years after, there would still be an obligation to assert the imperative of making our own final appellate jurisdiction a reality.

The case needs no further arguments to be won. Tonight's application is to obtain relief by an Order on The Summons For Urgency.

Learned senior counsel went on to briefly analyse the 2005 Privy Council decision (striking down the legislation setting up the CCJ as our final appellate court), of which he conceded: "Then, and now, I must accept it as valid because it emanated from a final court. But that does not mean it was infallible.

At the time, I referred to the judgment as self-serving and wrong. Finally freed from political considerations, P.J. gave his personal views for the very first time in public:

There are portions of Lord Bingham's judgment which smack of imperial arrogance:

'The independence of the Privy Council, which although enjoying no entrenched protection, is known to be immune from local parliamentary or executive pressure and whose members are all but irremovable.'

From where did the local pressure emanate when subsequently The Westminster Parliament created The Supreme Court of England and, as a result, there now sit on the Privy Council judges of inferior jurisdiction who review decisions from our own Courts of Appeal?

Having accepted 'that without doubt the CCJ agreement represents a serious and conscientious endeavour to create a regional court of high quality and complete independence', why then did the court find it necessary to invoke the doctrine of 'anticipatory wrongdoing' to give protection against governmental misbehaviour?

It was plainly condescending, indeed a grave insult to the democratically elected leaders of the Caribbean people.

REFERENDUM? WHY?

P.J. Patterson then proceeded to remind his fellow attorneys that the Privy Council had asked for written submissions on the required steps to replace it with the CCJ, although it subsequently declined to rule on this issue. He continued:

Learned counsel for the appellants, which included the Jamaican Bar Association, proposed a precise course to deal with an entrenched provision.

Eminent counsel proposed a scheme which would incorporate the CCJ in Chapter VII of the Constitution as an additional superior court and similar provisions for the judges which would not require any amendment to Section 49. 'All these new provisions would then become subject to the ordinarily entrenched amendment procedure.'

Let me point out that was the same procedure followed three years ago when our legislature amended, with the support of the then Opposition, The Charter of Rights and Freedoms that is ordinarily entrenched in the Constitutional provisions of Chapter III.

I understand that the bills now before Parliament were drafted to require two-thirds approval in both Houses.

... The government side presently enjoys the requisite two-thirds support in the House of Representatives.

But what if the Senate fails to give the appropriate consent?

Where else in the world has a referendum been required to abolish the right of appeal to the Privy Council?

I am obliged to enquire, per curiam, when were the Jamaican people ever asked whether they wished to depart the Privy Council or leave it in place on the advent of our Independence?

Having exposed the absurdity of requiring a referendum to replace a third-tier court whose continuation was imposed on the people at Independence without referendum, Mr Patterson went on to spell out his solution to the immediate conundrum. This is the most powerful public position taken since Independence by a man eminently qualified in every necessary and relevant arena to make such a suggestion. The suggestion comes from an eminent advocate and Queen's Counsel; from a former prime minister with the unparalleled support of his people; and from a former CARICOM chairman and one of the most respected chairmen of that august regional institution.

After making it clear that these were personal opinions only, he said:

Speaking as counsel, in my own view ... the only safe course is to be found in the decision of the Privy Council itself 'separate the package'.

I submit we may have no alternative but to take one step at a time in order to loosen the Gordian knot.

Mr President, Hon Chief Justice:

As you often invite counsel to do, allow me to lay the proper foundation for my submission that we proceed to take one step at a time, should political obstinacy permit no other way out.

Everyone has been bound to concede that Section 110 is not entrenched. Anyone who suggests it was due to inadvertence does a great injustice to the architect of our Constitution, N.W. Manley, QC.

Paragraph 16 of the Privy Council's judgment accepts that the section could have been validly repealed by the majority votes of a majority of all the members of each House.

'The result would have been to constitute The Court of Appeal as the ultimate appellate tribune in and for Jamaica.'

'Buttressed by the constitutional safeguards, without more, this would not weaken the protection which the Constitution guarantees for the benefit of the court and the people of Jamaica.'

Paragraph 22 of Lord Bingham's judgment refused to sever the right of appeal to the Privy Council from the other three acts, because 'in the present instance, Parliament legislated not simply to revoke the right of appeal to the Privy Council but to replace it with a right of appeal to the CCJ.'

'There could be no severance, since the three measures were connected, intended to be part of a single, interdependent scheme.'

Where there is a right, there must also be a remedy.

The judgment could not have pointed out more definitively the safest path of final resort, should all other attempts fail.

It reveals how the roadblock resulting from political obstinacy can be effectively dismantled.

Once this is done, the Sovereign Parliament of Jamaica can subsequently decide whether a three-tiered system should be restored, and if so, when and how.

Fellow Counsel,

One of the joys of retirement from public office is the luxury of legal musing in which I have just indulged.

On these grounds, I rest my case.

My response is once again to borrow, this time from some of the finest decisions of our best Court of Appeal judges:

"I concur and have nothing to add."

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.