- CONTRIBUTED
Lawyers who represented the appellants contesting the constitutionality of the Caribbean Court of Justice, before the Privy Council. In front row from left, David Batts, Stacy-Ann Powell, Nancy Anderson and R.N.A. Henriques, Q.C. In the back row from left are lead attorney Dr. Lloyd Barnett and Richard Small.
David Batts, Contributor
THE DUST is beginning to settle after the landmark decision of the Judicial Committee of the Privy Council (Privy Council) in IJCHR and others v A-G. PC #41 of 2004.
It is now the time for politicians and self-styled legal analysts, to launch a counter-attack. The Privy Council, some say, lacks confidence in our political leaders, others suggest the Privy Council is seeking to perpetuate colonial rule, yet, others suggest that the ruling displays distrust and contempt for the people of Jamaica.
This is, of course, all nonsense. I write this article in the hope and for the benefit of the many Jamaicans who wish to better understand the decision, bereft of emotional diatribe. It is for those who prefer reason to rhetoric.
The Jamaican Bar Association in its Position Paper of March 2000 advised the Government of Jamaica not to sign a treaty which did not require entrenchment of the court in each participating State. The Bar told the government that entrenchment of the court in Jamaica's Constitution was a constitutional imperative. This position was reiterated several times before and after the treaty was signed.
The Bar Association came to this conclusion based upon an analysis of the Constitution of Jamaica and previous legal decisions.
Our Constitution of 1962 has, at its core, the principle of the separation of powers and responsibility. It created
(a) An Executive comprising the Queen (represented by the governor -general) and Cabinet.
(b) A Parliament comprising the Queen, a Senate and a House of Representatives); and,
(c) The Judiciary.
Each of these institutions was given constitutional protection. They could not be abolished or altered without a specified procedure being adopted. Some required a two-thirds majority in Parliament, others required a referendum of the people of Jamaica.
The purpose of entrenchment was to protect the persons serving in each institution from interference or intimidation when carrying out their public duties. I should add that insofar as the judiciary was concerned, the institutions responsible for the appointment of judges was also entrenched and protected by the Constitution. A judge therefore, cannot, except in the most exceptional circumstance, be removed from office nor have his salary reduced.
The question to be asked is, if in 1962 the framers of the Constitution went to such great lengths to protect those courts created by the Constitution, is it not reasonable to conclude that had they at that time set about creating a third-tier level of court it would also have been similarly protected?
FALLACY
It is convenient at this time to address the fallacy put forward that "as the Privy Council is not entrenched so, therefore, neither should be the court to replace it." The fact is that the Privy Council was not created by the Constitution in 1962. At that time, the institution in its present form had existed for over 100 years. It existed outside our shores and local politicians had nothing to do with the appointment, remuneration or removal of its judges. In fact, in 1962, it represented (as it does now) an historical anachronism. The framers of the Constitution by Section 110 merely recognised the continuance of a right of appeal from the Court of Appeal to her Majesty in Council. Section 110 is not an entrenched provision.
It would have been rather silly to entrench a right of appeal to a court over whose continued existence and functioning your country had no direct or indirect influence (although many of our Caribbean neighbours did entrench the right of appeal, Trinidad retained that entrenched right of appeal to the Privy Council even after they became a republic headed by a president and not the Queen!). The fact is, the creation of an institution is far different in its implications than the mere recognition of its existence. There is, therefore, no inconsistency in recognising the existence of an unentrenched right of appeal to the Privy Council whilst advocating for the entrenchment of a new institution created to replace it.
It is implicit in the constitutional structure outlined above, that whereas the executive and the legislature set and implement policy, if that policy involves the creation of a final court of appeal, that court must be protected by entrenchment. This is a necessary and obvious conclusion drawn from the structure of the Constitution itself.
The point may be best illustrated by asking a constitutional question unrelated to the judiciary and to judges.
REFERENDUM
Could Parliament by simple legislation, that is without either a specified majority or a referendum, pass a law creating a higher or second-tier Parliament? For example could Parliament give the Heads of Government of CARICOM responsibility to make laws for the Peace Order and good government of Jamaica? Every Jamaican would immediately recoil with horror and respond with a resounding no!! Yet the Constitution does not in express terms preclude this type of action. It is, however, implicit in the structure of the Constitution that Parliament could not, without constitutional amendment to entrenched provisions, so undermine its own authority.
Similarly, I submit, Parliament cannot without constitutional amendment undermine the authority of any other entrenched organ of the State.
The reader will be interested to know that the same words are used to establish Parliament as are used to establish the courts created in 1962:
"There shall be a Parliament of Jamaica" Section 34; "There shall be a Supreme Court for Jamaica" Section 97; "There shall be a Court of Appeal for Jamaica" Section 103.
SOBER ANALYSIS
It is, therefore, clear on sober analysis and with reference only to the structure of the Constitution, that it was never intended that any one party enjoying a simple majority in Parliament could use that simple majority to create a final court of appeal or law-making institution.
There are, of course, other more complex ways of arriving at this conclusion. One involves an analysis of the judiciary in Chapter VII of the Constitution, and their respective jurisdictions. Could it be the intent of the framers of the Constitution that a final appellate court be created to decide on decisions of a lower court which is more deeply entrenched in the Constitution than is that final court? If that were the intent, then Parliament could, by simple legislation, make anyone into a final court, not provide protection, and thereby undermine the judicial structure.
What if the issue involved, not a Caribbean court as currently structured, but a 'PNP' or 'JLP' court in which partisan lawyers were rewarded by appointment to the final court of appeal. The naysayers need to realise that a Constitution is not a contract for the here and now. It is essentially the embodiment of the structure or framework of the State and is intended to last forever. If it were decided that the Jamaican Parliament could by simple legislation create a Caribbean court in this manner, it would mean that 10 years from now, another Parliament by simple legislation could similarly abolish appeals to that Caribbean court and create a new final appellate court of its choosing. The Constitution, if it is to mean anything, could not mean that.
The decision of the Privy Council may also be supported by reference to previously decided cases. So that in Tanzania, when an attempt was made to create a Land Tribunal outside of the constitutional structure of courts, the Court of Appeal of Tanzania struck it down, Akonaay v A-G [1994] 2 LRC 399; and in Jamaica, where an attempt was made to take away a part of the jurisdiction of the entrenched court and confer it on an unentrenched court, it was also struck down, Hinds v DPP [1977] AC 195; and in South Africa where the apartheid regime frustrated by judicial decisions which did justice to the black race purported to make Parliament itself the final court of appeal for racial matters, the South African court struck down the legislation, Minister of Interior v Harris [1952] 4 SAR 769. (In that South African constitution, the judiciary was not entrenched, and the Parliament, I am told, subsequently abolished the South African Court of Appeal!!). There is also judicial authority out of Australia, but this article is not designed for lawyers and I say no more in that regard.
'POLITICAL' ISSUE
Before ending, let me advert to one 'political' issue. At least one commentator has suggested that the Privy Council does not trust local politicians. I suggest that it is not the Privy Council, but rather the people of Jamaica who have such reservations, in particular the 60 per cent who no longer see anything or anyone worthy of their vote at election time. This is not surprising because Jamaicans have, since independence, witnessed the abuse of power by declarations of States of Emergency, which resulted in unlawful detentions for political reasons; the grant of contracts to political hacks; the homage paid to reputed 'dons' by politicians who attend their funerals and even lead funeral processions of persons who died while awaiting deportation.
We have seen the running down of our system of justice and our educational institutions; we have seen, in Trinidad, the then chief justice declared an" enemy of the State" by the then prime minister. For these reasons and more, the people of Jamaica have every right to be wary when fundamental change is proposed to the system of justice.
Insofar as the matter of trust is concerned, it is clear that when drafting this Constitution, the safeguards were implemented because neither the PNP nor the JLP who drafted the document "trusted" each other. Each did not believe the other would exercise its simple majority responsibly.
Hence the entrenched provisions and the design of the Senate. This guaranteed that a two-thirds majority is impossible without the cooperation of the other party. Fundamental constitutional change requires either consensus between political parties or consensus nationally (after a reference to the people by referendum).
But abuse of power is not unique to this region. In Zimbabwe, the chief justice was forced out of office because of dissatisfaction with decisions of the court. The West African Court of Appeal, I am told, died for want of funding because the politicians were unhappy with its decisions. In the United States, the tendency of presidents to nominate justices based upon their politics rather than their ability, has been criticised:
"The time has come to change the criteria for Supreme Court nominees and to depoliticise the process of appointing justices. If justices are simply lawyers appointed for their political reliability, then why should the public accept their decision?" Alan Dershowitz "Supreme Injustice" [2001].
Ultimately, power uncontrolled, will result in its corrupt use. The Constitution is one method of controlling power, public opinion is another. I believe the people of Jamaica understand this. In the final analysis, therefore, the decision of the Judicial Committee of the Privy Council is correct because it is consistent with the Constitution, consistent with previously decided cases and consistent with good governance.
David Batts is one of the attorneys-at-law who went before the Judicial Committee of the Privy Council to argue that the procedures being adopted by the government in setting up the Caribbean Court of Justice were unconstitutional.
