Donovan Jackson, B.Sc., LL.B.
Attorney at Law
6A Holborn Road
PRIVY COUNCIL WINS APPEAL?
(The devil is in the details)
1For many years, it has seemed clear to me that with respect to the Caribbean Court of Appeal [now Caribbean Court of Justice (“CCJ”)], that Jamaicans were being presented with a fait accompli? A done deal, which was to be put in place with a little stealth but if resisted would be rammed down our throats with us kicking and thrashing, as it was for our own good and a matter which the elected Government was entitled to decide.
The arrogance that could lead to a view that a simple majority in Parliament could set up this countries highest court, in my view has its genesis in some confusion regarding Parliaments’ status and the thinking that in Jamaica Parliament is Sovereign.
Statements such as “ We cannot allow any court, inside or overseas to trespass on our sovereign competence as a Parliament to legislate on matters of national policy", worry me. The essence of what was being said is that Parliament would not allow any court under the pretense of ‘judicial interpretation’, inside Jamaica or overseas, to trespass on the sovereign competence of Parliament to legislate on matters of national policy.
The reality is that:
"The Court has a right, an obligation, a duty and a power to interpret the law. It has a duty and a power to review administrative actions. It has a duty and a power to review the constitutionality of any Act which Parliament passes...What it does not have a right to do, is to substitute its own legislation under the guise of judicial interpretation for a law which has been passed by Parliament."
And “The authority of Parliament itself - ‘supremacy’ as it is often called ultimately turns on judicial recognition”. We need not debate this type of settled Constitutional point.
The political decision to make the Jamaican Parliament Supreme in place of the Constitution has not yet been made and we must not confuse the position with England’s Parliament with that in Jamaica or indeed the rest of the Caribbean.
In all of this what concerned me then and still concerns me was that I was left to wonder why? What precisely was driving this matter? Were the motives wholesome or were they less than honourable? Was I to assume that they were well intentioned but that the Government was in some respects (in my opinion), ill advised?
In answer to this, proponents within the machinery set up to implement the Court, cite the fact that a substantial number of the recommendations of the Jamaica Bar Association for example had been taken on board. That there had been discussion concerning the Court albeit at a late stage. Let me confess interest, as I was a member of the Committee of the Bar, which made recommendations to the Bar Council who then made its submission to the CCJ’s Implementation Committee.
It is true that there have been changes as a result, but there are still major weaknesses in my opinion and in the opinion of many far more learned and experienced than I am. Indeed a few things seem to have been presented on the Government side as ‘non negotiable’ which is puzzling, as Government is in no position to claim ‘non negotiable’ positions in this matter.
Value of CCJ as proposed vs Abandoning Privy Council
Essentially therefore, at the end of the day, people need to weigh, the value of a CCJ in respect of which it could be said on the face of the documentation made available so far:
I. is not entrenched in the Constitution in Jamaica and in the Constitutions of participating states rendering it more vulnerable to withdrawal or the threat thereof, than should be the case,
II. was settled without reference to the people who have repeatedly...
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