Sat | Mar 28, 2020

Editorial | CCJ ruling could impact Jamaica

Published:Thursday | April 11, 2019 | 12:16 AM

There was a little-noted, but potentially constitutionally significant, observation in the Privy Council’s recent ruling making it mandatory for the Police Service Commission (PSC) to procure independent investigations, especially from the Independent Commission of Investigations (INDECOM), when considering the promotion of police officers who have faced complaints of serious misconduct.

It has to do with the court’s interpretation of the word ‘whereas’ at the start of Clause 13 of Jamaica’s Constitution that deals with the fundamental rights and freedoms of citizens, in which it seemingly embraced the Caribbean Court of Justice’s (CCJ) contextual meaning of the term, thereby overturning its own previous position on the matter. That, in the event, would make observation persuasive to, if not binding on, the Jamaican courts.

Further, the development underlines the growing respect for the jurisprudence of the CCJ and highlights the contorted logic of those in the Caribbean, including Jamaica, who still conspire against accession to the CCJ as our court of last resort.

In 2009 when now-retired police superintendent, Delroy Hewitt, was recommended for promotion, the human rights group Jamaicans for Justice objected on the basis of the number of complaints they had against him and men under his command, especially in relation to fatal shootings – 37, according to police records.

The PSC, in coming to its determination, relied only on investigations by the police force, even though before it made its decision, INDECOM was already established to probe misconduct by members of the security forces.

The Privy Council ruled that while there was no expressed statutory duty for the PSC to make further inquiries about Mr Hewitt, “a proper discharge of the statutory functions, which the PSC did have, required it to do so”. These include the common-law principles that, in the exercise of public functions, persons should have equal protection under the law, and protection from unreasonableness, irrationality, unfairness and the arbitrary exercise of power.

Critically, too, in her ruling, Lady Hale drew attention to the Constitution’s chapter on Fundamental Rights and Freedoms, including, at Section 16, the right to due process. The section starts with ‘whereas’, before declaring the State’s obligation to “promote universal respect for, and observance of, human rights and freedoms”, and listing what these rights are, and the bases for their abridgement.

Some courts, including the Privy Council, as well as in cases involving Jamaica, have held that ‘whereas’ in these formulations were merely as preamble, establishing aspirations, but not an enforceable or justiciable right. The matter arose in a CCJ case from Barbados, where a man convicted of murder challenged the automatic imposition of the death penalty.

In her ruling in the Hewitt matter, Lady Hale noted that the regional court, in construing Section 11 of Barbados’ Constitution, “which also begins with the word ‘whereas’, held that this did not mean that the section was merely aspirational [or] a preliminary statement of reasons, which make the passage of the Constitution, or sections of it, desirable”.


She added: “It was intended to have the force of law. The court went on to say, of the right to the protection of the person, that it affords every person … adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power.”

In the decision to which Lady Hale referred, the CCJ argued further that the word ‘whereas’ should at least reflect its context, which, in the case of Barbados’ Constitution, includes the statement in its preamble that the rights being declared were being enjoyed since 1652.

“The word ‘whereas’ should have been construed as intending to convey that simple fact,” the CCJ said. “We can find no justification for attributing a meaning which deprived the section of any binding effect.”

What does the Jamaican Government think about the Privy Council’s reference to the CCJ and its own stance on the regional court?