Mon | Aug 21, 2017

CCJ, Privy Council Compromise

Published:Thursday | June 4, 2015 | 6:00 AM

Recently, I was meeting with an attorney-at-law and member of the Jamaican Privy Council, an encounter which gave me an idea of how we could have a Caribbean Court of Justice (CCJ)-Judicial Committee of the Privy Council compromise. The idea is to have both the CCJ and Privy Council as we have them now, but with their roles and responsibilities changed.

In 2001, the CCJ was established as the judicial organisation of the Caribbean Community (CARICOM). The CCJ, in its original jurisdiction, interprets and applies the Revised Treaty of Chaguaramas, while in its appellate jurisdiction, it hears appeals as the court of last resort in civil and criminal matters from Barbados, Belize, Guyana and Dominica. At present, Jamaica uses the CCJ in its original jurisdiction only.

According, to Section 110 (1) of our Constitution, as it relates to the Privy Council, persons have the right of appeal for civil matters in disputes in the value of $1,000 or upwards on issues concerning property rights and "final decisions in any civil proceedings; final decisions in proceedings for dissolution or nullity of marriage; final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution".

In addition, Section 110 (2) states "An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases -

(a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings; and

(b) such other cases as may be prescribed by Parliament."

The Privy Council is a creation for former colonies of the British Empire for use mainly by those citizens. The judicial system of the United Kingdom does not have a single highest national court. The Judicial Committee is the highest court of appeal in some cases, while in most others, the highest court of appeal is the UK Supreme Court. Judgments of the Judicial Committee are not generally binding on courts within the United Kingdom, having only persuasive authority. Then there is the European Court of Human Rights, which can be accessed for persons who feel their rights have been breached.

STRIKINGABALANCE

In addition, according to Jamaican law, the Court of Appeal is the final court on issues related to extradition and election petition. In other words, no one involved in an extradition or election matter can appeal to the Privy Council. Apparently, due to the need for swift justice and the need for democracy not to be stalled by a drawn-out election petition, the Court of Appeal is final. This means that there are matters for which the final appeal rests with Jamaican jurisprudence. One can ask, why is it that some matters can have three tiers and others two tiers? It could be argued that a third tier is superfluous in certain matters.

Therefore, assuming a deadlock in our legislature and a deadlock over holding a referendum, then we should aim for a compromise. The compromise would be to have the CCJ replace the Privy Council in matters to be dealt with in criminal and civil cases. We could retain constitutional matters and marital matters to be dealt with by our Court of Appeal along with extradition matters and election petitions. The Privy Council would become equivalent to the European Court of Human Rights and would deal with the rights enshrined in the Charter of Fundamental Rights and Freedoms.

n Rev Devon Dick is pastor of the Boulevard Baptist Church in St Andrew. He is author of 'The Cross and the Machete', and 'Rebellion to Riot'. Send feedback to columns@gleanerjm.com.