Thu | Dec 2, 2021

Editorial | Justice Panton’s unfortunate remarks

Published:Tuesday | March 9, 2021 | 12:07 AM

As much as we share Seymour Panton’s esteem for Jamaican judges and back his campaign for the island’s extrication from the Privy Council as its court of last resort, we find it offensive that the former president of the appeal court would ridicule anyone for utilising the allowable processes of the system in pursuit of what they believe to be their right to justice. It matters nought whether these persons are high political officials or ordinary citizens.

In the circumstance, Justice Panton’s description last week of an appeal to the Privy Council of a decision by the Court of Appeal by five members of the opposition People’s National Party (PNP) – including former Prime Minister Portia Simpson Miller – as “time-wasting nonsense”, places squarely on the table the question of a code of conduct for retired judges and how constrained they should be by the values of the court once they leave the bench.

The case on which the former judge commented is the Trafigura Affair, in which, in 2006, Dutch commodity trader Trafigura Beheer lodged the equivalent of J$31 million in an account associated with former PNP General Secretary Colin Campbell. The money was variously described as a gift to the PNP to help defray the cost of the party’s annual conference or payment for services delivered on behalf of the company.

At the time, Trafigura had an agreement to broker oil for the Jamaican Government, which was formed by the PNP. The Netherlands authorities wanted to know whether Trafigura had broken Dutch law by paying bridges abroad. So in 2007, when Jamaica’s administration changed and the law was updated, Holland asked Jamaica for assistance, under the island’s mutual legal assistance legislation, in questioning the five PNP officials at the centre of dispute – Mrs Simpson Miller; former PNP General Secretary Colin Campbell; former Chairman of the party, Robert Pickersgill; the party’s current chairman, Phillip Paulwell; and PNP operative and businessman Norton Hinds.

POINT OF CONTENTION

The point of contention has been where the judge, who was to preside over the questioning of the five, should have conducted the proceedings – publicly, in open court; or privately, in his chambers. Justice Lennox Campbell decided the former, leading to a series of constitutional and other challenges in the local courts, all of which the PNP officials lost.

Last week, the issue came before the London-based Judicial Committee of the Privy Council, which remains Jamaica’s court of last resort. It is on this development that Justice Panton weighed in during a speech in Montego Bay to new justices of the peace.

This newspaper has for long, and loudly, made clear its view that it is long past time that Jamaica leave the Privy Council and accede to the criminal and civil jurisdiction of the Caribbean Court of Justice (CCJ), of which the island is a signatory and financial contributor. The quality of the jurisprudence of the regional court has been highly praised during its dozen years of operation. Jamaica is a member of the CCJ in its original jurisdiction as the legal arbiter of the treaty under which the Caribbean Community (CARICOM) functions.

As a matter of principle, therefore, we are at one with Justice Panton when he defends the high standards of Jamaican and Caribbean judges and says: “The reputation of our judges is such that I cannot for the life of me understand why Jamaica’s Parliament has allowed us, after 59 years of so-called independence status, to be still going to England to get answers to some very simple questions and for final determination of some very simple cases.”

We would add that even in the most complex cases, this newspaper would rather have their final determination in the Caribbean. Indeed, accession of the CCJ would give Jamaicans greater access to their final court, both in the logistics and cost of getting there.

TAKE OFFENCE

But up to now, the Privy Council remains Jamaica’s final court. In that sense, it is neither a separate nor an alien part of Jamaica’s jurisprudential regime. It remains in the Constitution as part of its consequential whole. Which is why we take offence with other elements of the former judge’s remarks.

He said: “This week, I am listening to the radio, and I heard about lawyers in Kingston asking some judges in England if some people here should give evidence on oath in open court or in secret.

“Can you imagine going to England to ask a question like that? Time-wasting nonsense! Jamaican judges have a reputation of being fair by not allowing outside matters to influence their determinations.”

The distance between Jamaica and the seat of the Privy Council in London and, hopefully, the independence of the Privy Council judges, may have insulated the law lords from being influenced by someone who held high judicial office. For, taken to its logical conclusion, influencing the judges could be one of the, though unintended, consequences of Justice Panton’s statement.

Further, neither the Court of Appeal, in giving leave to appeal, nor the Privy Council, in hearing the full pleadings of the appellants and respondents, seemed to believe that this matter represented an abuse of their processes. It is entirely possible that the Privy Council will agree with the rulings of the Jamaican courts. Yet the courts seem to agree that there are points of law worth arguing and that the litigants’ claims should not be short-circuited. It is one thing to advocate for the CCJ, but statements that might shame people from using all the existing arms of the courts is quite another.

Many jurisdictions have specific codes of conducts for ex-judges, which often hew closely to the expected behaviour of sitting members of the bench, including how they should pronounce on cases before the courts. In light of this incident, it should, perhaps, be a matter for discussion in Jamaica.