Privy Council ruling holds
THE EDITOR, Sir:
In The Sunday Gleaner of May 31, 2015, Frank Phipps, QC, kindly quoted me on the matter of the "referendum question" concerning the Privy Council and the Caribbean Court of Justice (the CCJ). He correctly notes that, in a journal article in 1998, I concluded that the matter of abolishing appeals to the Privy Council should be put to the Jamaican electorate in the form of a referendum.
About seven years following the publication of that article, the Privy Council had the opportunity to address aspects of the referendum question when it heard the case of the Independent Jamaica Council of Human Rights (1998) et al v Syringa Marshall-Burnett and the Attorney General of Jamaica (the CCJ Case) in 2005. In this case, I was one of the attorneys representing Mrs Marshall-Burnett, the then president of the Jamaican Senate, and the attorney general.
In the CCJ case, the Privy Council appeared to accept the view that appeals to the Privy Council could be abolished by a majority vote in both Houses of Parliament: Section 110 of the Jamaican Constitution, which safeguards appeals to the Privy Council from Jamaica, is not an entrenched provision.
The Privy Council held that a special majority of both Houses of Parliament would be needed to replace appeals to the Privy Council with appeals to the CCJ. Their Lordships did not expressly spell out the type of special majority that was needed to bring about this replacement; but the Privy Council's reasoning is undoubtedly in line with the view that a two-thirds majority of both Houses of Parliament is required to terminate appeals to the Privy Council and replace them with appeals to the CCJ.
In essence, the Privy Council's reasoning is that the Jamaican Court of Appeal and Supreme Court are constitutionally entrenched, protected courts. Thus, in order to place a higher court above them, the legislature would need to follow the procedure for constitutional amendment that is appropriate for altering the status of the Court of Appeal and the Supreme Court. That procedure is clearly a two-thirds majority of both Houses.
In light of the Privy Council's unanimous decision and the reasoning used to support that decision, I now take the view, pace Mr Phipps, that a two-thirds majority of both Houses is the proper course to adopt for the replacement of Privy Council appeals with appeals to the CCJ. This is the approach required by respect for the decision of the Privy Council.
Of course, I see the paradox inherent in my reliance on a decision of the Privy Council to justify my perspective. But the rule of law requires us to rely on the Privy Council as Jamaica's highest court until it is replaced.
Jamaican Ambassador to US