Privy Council U-turn

Justice Minister Delroy Chuck says the Privy Council’s withdrawal on Thursday of the proposed ‘review of merits’ rule will result in more cases devoid of merit going to the London-based institution that serves as Jamaica’s final court.

Chuck told The Gleaner that the rule, which would allow a single judge to look at the cases of appellants and determine if they should go forward, was a “common-sense” one.

“If they decide to withdraw it, then it just means that more cases will be heard by them, and appellants whose cases are devoid of merit may well incur unnecessary expenses, especially if they lose the appeal,” Chuck said.

“They may well have to pay cost of the respondents,” he added.

In a brief statement posted to its website, the court said it would shelve the proposed ‘review of merit’ rule, also called Rule 23.

“In the light of the responses to our consultation on the proposed new rules, the board has decided not to proceed with proposed Rule 23 and is suspending the operation of PD 4.7.1 pending further consultation on a suitable case management arrangement,” the court said.

The Jamaican Government’s position on the rule had come through Chuck, who, earlier in May, said the move by the Privy Council was to ensure that only cases that have merit are adjudicated.

“What the Privy Council is doing is, essentially, what most courts of appeal do, and that is to have a single judge do an assessment. That single judge will see no merit and, therefore, indicate that to the applicant … ,” he told The Gleaner on May 8.

Rule 23 was part of several changes the court proposed to change its operations. A document with the proposals was published on April 15 and the deadline for submissions May 17.

Chairman of Jamaica’s King’s Counsel Group Michael Hylton said he was pleased the court had made an about-turn.

“As we said in our letter, we think that it was the wrong principle. We invited them to reconsider, and they have,” said Hylton.

The group wrote to the court, objecting to the rule, calling it a violation of the Jamaican Constitution.

The Privy Council said a single member of the court would consider each appeal to determine whether it is “devoid of merit”. This would include appeals brought as of right pursuant to the Constitution of the relevant jurisdiction and appeals in relation to which the Court of Appeal has granted leave.

If the single judge is of the view that the appeal is “devoid of merit”, the appellant will be invited to send written submissions, and a panel of three or more justices may then decide to dismiss the appeal without an oral hearing if it also felt that there was no merit.

The King’s Counsel Group had argued that under Jamaica’s and the constitutions of some other countries that maintain the Privy Council as their final appellate court, a litigant is entitled, as of right, to appeal to the court in certain cases.

It said those appeals have always involved an oral hearing, usually before a panel of five or more judges.

In a statement yesterday, the Jamaican Bar Association said the Privy Council advised it of the decision not to proceed with the rule during a meeting on Wednesday.

The lobby for local lawyers had written to the court with concerns about the rule on May 14.

JAMBAR President Kevin Powell, council member Maurice Manning, KC, and Chairperson of JAMBAR’s Constitutional and Human Rights Committee Carlene Larmond, KC, met virtually with the Privy Council’s deputy president, Lord Hodge, and Registrar Laura Angus.

“JAMBAR also secured the opportunity to provide comments on other proposed revisions to the Rules and to consult further with the Privy Council on the alternatives to Rule 23, which would be aimed at assisting litigants in identifying appeals that may be without merit to save time and costs without derogating from their right of appeal,” the statement said.

Sections 110 (1) and (2) of the Jamaican Constitution allow appeals, which are heard by the Privy Council to appellants “as of right” or after the Jamaican Court of Appeal has determined that the appeal is of great general or public importance. Rule 23 would, therefore, have resulted in an additional barrier to the exercise of an appellant’s constitutional right, JAMBAR said.

Human rights lobby Jamaicans for Justice had also raised concerns about the proposed rule, questioning the process by which this “binding decision was taking place”.

JFJ Executive Director Mickel Jackson had also pointed to Section 110 of the Constitution, arguing that whether there is an agreement or disagreement with the proposal, a decision was made on how Jamaica’s final court of appeal operates with little consultation or input from the country.

kimone.francis@gleanerjm.com