Delroy Chuck
THE PRESIDENT of the Caribbean Court of Justice (CCJ), Michael de la Bastide, is obviously distressed that more countries, other than Barbados and Guyana, have not joined the appellate jurisdiction of his court. "What the judges and officers of the CCJ are looking forward to," he urges in a campaign speech for the CCJ on May 16, "is the opportunity to justify to the contracting parties the financial commitment which they have already made."
Justice Bastide's attack on his fellow Privy Councillors, of which he is one, even though he has not yet been invited to serve, was unbecoming and injudicious. In assessing the JCPC judgments on the death penalty, he declared: "It has reached the stage that when a case of that type comes to the board, one can almost predict from the composition of the board what the outcome will be. Any notion of the infallibility of the Judicial Committee would be shattered by reading what some of its members have to say about the views of others with which they disagree." With such an outspoken position, Justice Bastide has exposed an inherent danger in choosing judges for a case instead of deciding issues on judicial principles. As president of the CCJ, will he know how his judges will decide cases and select them based on the outcome he wants in a case?
ATTACKS JCPC DECISION
Justice Bastide attacks the decision of the JCPC, which unanimously declared the three Acts of the Jamaican Parliament on the CCJ as unconstitutional. "That decision," he laments, "impacted very negatively on the development of the CCJ's appellate jurisdiction. The lead given by Jamaica in accepting the appellate jurisdiction of the court would have provided a powerful incentive for other smaller countries to follow suit. Moreover, appeals from Jamaica would have provided the court with an opportunity to increase its visibility and to dispel the fears and reservations of the doubting Thomases in the region." If he wants to give more visibility to the Court, then he should try first to persuade Trinidad and Tobago, his native land where he was Chief Justice, and which country has the most cases from the region going to the JCPC, to join the CCJ.
What is of great concern, however, is the poor rationale of Justice Bastide in his criticism of the Privy Council in its ruling on the unconstitutionality of the three Acts of the Jamaican Parliament. As far as he was concerned, since Section 110 of the Constitution was unentrenched, to change the highest court by a simple majority of Parliament would not be unconstitutional. What Justice Bastide fails to understand is that to do so would set a dangerous precedent, which would put in doubt the whole constitutional arrangement of our judiciary. If Section 110 can be changed today, it can be changed tomorrow, which means that the highest court of the land could become a political football, depending on the whims and fancies of the majority in Parliament. It is a fact that, at present, our highest judicial court, the JCPC, is unentrenched but that does not mean that its replacement can be unentrenched.
DISMISSED HINDS' CASE
Justice Bastide dismissed the case of Hinds, wherein the JCPC ruled that Parliament could not set up another court with similar jurisdiction as the Supreme Court and the Court of Appeal without following the same process for the appointment of the judges. He was quite wrong. Parliament cannot interfere with the present judicial arrangement, as the Privy Council rightly held, without entrenching the new court or with constitutional change,.
Justice Bastide's speech did not add much to the CCJ debate. At the present time, Jamaica has to work out an agreed arrangement on the process and the bills to be laid in Parliament, which must be passed by two-thirds majority in both houses and, at the insistence of the present Opposition, for the people to decide if and when to remove the JCPC and adopt the CCJ.
Delroy Chuck is an attorney-at-law and Member of Parliament. He can be contacted by email at delchuck@hotmail.com.
