PRIVY COUNCIL UNEASE

Former Prime Minister Bruce Golding has argued that while the right of appeal to the United Kingdom-based Privy Council was set out in Jamaica’s Constitution, the country’s supreme law does not have the power to grant such a right.

In a presentation dubbed ‘Reasoning about Reform of the Jamaica Constitution’, Golding said his greatest concern about Jamaica’s final court was its continued availability.

Addressing a gathering of legal minds and members of academia at the Faculty of Law at The University of the West Indies, Mona, on Tuesday, Golding reminded the country that former chief justice of England and Wales, Lord Nicholas Phillips, told Commonwealth countries that they had overstayed their welcome in sending appeals to the apex court.

Golding also noted that Phillips’ successors had recanted his position.

However, the former head of government cautioned that this was not a judicial decision in which the Privy Council can decide that Jamaica can still make appeals to the apex court.

He reasoned that such a decision was the purview of the British government and the British Parliament. He said Jamaica’s access to the Privy Council is governed by the Judicial Committee Act of 1833.

Golding noted that British lawmakers could amend that law to specify that Privy Council cases would be subject to British dependencies, among other things, and, therefore, would no longer be open to Jamaica.

He made it clear that such a decision could be made without consultation with the Jamaican Government.

“I am uncomfortable about the fact that the right of appeal to the Judicial Committee of the Privy Council, which is specified in our Constitution, is really not a right that our Constitution has the power to bestow,” said the former prime minister.

“What would we do if at some point the politicians in Britain – who, in recent times, have shown an inclination to take some weird positions upending decades of traditions – what would happen if they decide they are going to change this act of 1833?” Golding questioned.

“What would we do at that time? Run down to Port-of-Spain and say, ‘We ready now. We come’?” he quipped, referring to the Caribbean Court of Justice (CCJ), which is based in the Trinidad and Tobago capital.

IDEA SHOULD BE REJECTED

Golding said the idea of setting up Jamaica’s “own final court” should not be rejected without consideration.

However, he highlighted cost implications and raised concerns that such a move to populate an apex court from the State’s small pool of talent would be done at the expense of the Supreme Court and the Court of Appeal.

Golding also reasoned that the momentum towards constitutional reform has been disrupted by the debate surrounding the CCJ, describing it as the elephant in the room.

The ruling Jamaica Labour Party (JLP) has taken the position that the people should decide in a referendum on Jamaica’s final court. Golding said there was merit to that argument.

“If you are talking about our final court, our apex court – the court from which all other courts will have to take guidance – then that is something that the people should decide,” he said.

However, the People’s National Party (PNP) has expressed reservations about putting the matter to a referendum as the vote could be influenced by partisan political considerations. Golding noted that there is also merit to this argument.

Further, the PNP has insisted that Jamaica’s severance from the British monarchy must be twinned with its departure from the Privy Council.

Golding argued that the constitutional reform process is stuck unless the political parties can arrive at a compromise regarding the CCJ.

“Unless there is a change in the PNP’s position, there will be no constitutional reform until this issue of the Caribbean Court of Justice is dealt with,” he said.

The former prime minister admitted that he had reservations about Jamaica acceding to the CCJ based on some initial proposals, including that the judges would have been appointed by the heads of government of the Caribbean. This, he said, had set off some alarm bells.

At the outset, it was also proposed that the funding of the court would depend on annual budgetary subventions from Caribbean governments. He said it was later proposed that a trust fund would be established to finance the court in perpetuity.

“And then there was this egregious episode, where Basdeo Panday (former prime minister of Trinidad and Tobago) on a political platform declared that the chief justice of Trinidad and Tobago was public enemy number one of his government. There is hardly this kind of person you want appointing judges,” he said.

Following significant pushback from then JLP opposition and bar associations, Golding said the heads of government subsequently came up with a new arrangement that the judges would be appointed by a regional service commission comprised of members of the legal and academic community.

The former JLP leader said that in 2005, the late former Prime Minister Edward Seaga took what he described as an interesting position.

He noted that Seaga did not rule out his support for the CCJ, but indicated that he would give the court 10 years to operate and then carry out an assessment of its procedures and decisions and make a determination if the regional court should be embraced by Jamaica as its final court. He noted that more than two decades have since elapsed.

He said there is also a lack of critical assessment of the CCJ.

“Our legal community has been missing in action,” said Golding. “What have they done? All our erudite lawyers, what assistance have they provided in giving us an appreciation of the Caribbean Court of Justice, its procedures, its accessibility, its timeliness in terms of handing down decisions, the quality of those decisions?”

Golding said he read most of the decisions the court handed down in its appellate jurisdiction.

“I was impressed. I was impressed at the reasoning that was offered. I was particularly impressed at the language that was used, but I am not a legal scholar.”

edmond.campbell@gleanerjm.com