Caribbean Court of Justice: The journey of three bills
The House of Representatives will, on April 28, vote on the three bills to make the Caribbean Court of Justice (CCJ) the final court of appeal for Jamaica, replacing the Judicial Committee Privy Council.
The bills: 1) An act to amend the Constitution of Jamaica to provide for the replacement of appeals to Her Majesty in Council with new provisions for appeals to the Caribbean Court of Justices as Jamaica's final appellate court; 2) An act to make provision for the implementation of the agreement establishing the Caribbean Court of Justice, and for connected matters; and 3) An act to amend the Judicature (Appellate Jurisdiction) Act.
The mills will need a majority vote of at least two-thirds in the House of Representatives to go forward to the Senate. Presumably, the governing People's National Party's (PNP) greater than two-thirds majority in the Lower House will secure this goal.
However, it is the Senate where the obstacle will be encountered for the PNP. This is because there are only 21 senators, 13 appointed by the Government and eight by the opposition. A two-thirds majority, therefore, will require an affirmative vote of at least 14 senators for the bills to be passed into law. Sadly, it is almost certain, given Jamaica's political culture, that the senators will vote in keeping with the colour of their appointing party, and as such, it should be safe to assume that the bills in question will be snuffed out in the Upper House.
But this is not the first time these three bills have been before the Jamaican Parliament. On September 30, 2004, after being passed by a less than two-thirds majority vote in both Houses, the Governor General of Jamaica gave his assent to the same three bills (save for a few amendments made subsequently).
That assent signalled the clearing of the way for the Privy Council to be replaced by the CCJ for Jamaica. However, the bills never came into force as the Government had given an undertaking not to enforce them until a challenge regarding the constitutionality of the process had been determined.
The challenge to the constitutionality of the process first came to the Supreme Court where it was struck out as being premature. In the Court of Appeal, the applicants' arguments, likewise, did not find favour and their appeal was denied. This resulted in the matter being taken to the Privy Council for a determination if the procedure being used to oust itself was constitutional or not (go figure).
While accepting that the Privy Council was not entrenched in Jamaica's Constitution, and, therefore, could be removed by a mere simple majority in both houses, their lordships, nevertheless, felt that it was unconstitutional for the CCJ to have been elected to replace the Privy Council by a similar, simple majority vote. Their lordships ruled that the process to replace them (the Privy Council) was impliedly, even if not expressly entrenched, and as such, more than a simple majority vote was required.
The judgment, in my humble opinion, bears the hallmark of that kind of "sensibleness" that village lawyers are well known for, and less so, sound unequivocal law. One should be very wary when lawyers and judges go down the "consider the substance, not the form" route, as was advanced in this case, as such a route is often slippery and winding and culminates with fantastic leaps of faith.
In arriving at their conclusion that the three pieces of legislation were unconstitutional and void, Lord Bingham of Cornhill, referring to the English Privy Council, stated that although it enjoyed no entrenched protection in the Constitution of Jamaica, it was known to be "wholly immune from executive or parliamentary pressure in any jurisdiction from which appeals lay and whose members were all but irremovable".
It appears to me, therefore, that the perceived quality of the Judicial Privy Council played no small role in their lordships concluding that the imposition of any tribunal - short of the English Privy Council - would require at least a two-thirds majority in both houses.
I found more persuasive than the reasoning of the members of the Privy Council that of the judges of the Court of Appeal of Jamaica when this matter came before them. The Court of Appeal ruled that the question of the entrenchment of a new final appeal court rested with the policymakers (i.e., rested with the actual wording of the Constitution, which did not require the new court to be entrenched).
The court also held that the Appellants' (the Independent Jamaica Council for Human Rights and others) argument was without merit, unhelpful, and in part misconceived. Nevertheless, the ruling of the Privy Council trumped that of the Court of Appeal, and thus it was determined that the process which culminated with the governor general's assent in 2004, was incorrect and thus void and a new process, which required a two-thirds majority in both Houses or a referendum, had to be started.
So here we are in 2014, 10 years later, on the verge of the three bills never being passed into law because the PNP is afraid of a referendum and the JLP may "resign" anyone who tips the balance in favour of the Government in the Upper House.
The more things change the more they remain the same.
• Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Send feedback to: Email: firstname.lastname@example.org. Twitter:@shenastubbs