CCJ takes stand on J’ca issue

According to a statement by the CCJ yesterday, this was the view expressed by the CCJ president Justice Michael de la Bastide in an address at the Annual Meeting of the Caribbean Development Bank on May 16, in Montego Bay, Jamaica.

Focusing on a recent Privy Council decision in which the Judicial Committee held that Jamaican legislation which replaced the Privy Council with the CCJ as the final court of appeal, was passed in contravention of that country’s constitution, Justice de la Bastide said that since the right of appeal to the Privy Council was not an entrenched provision in the constitution (could not be removed without the support of a special majority), the Jamaican government presumed no special procedure was required to replace the Privy Council with the CCJ.

As a result, he said, three Acts were passed by simple majorities in both Houses of Parliament, affirming the CCJ’s status as Jamaica’s final court of appeal.

De la Bastide said the Privy Council ruling held that this procedure did not comply with the requirements set out in the constitution, and that such an act required the support of a special majority in both Houses.

Anything less, the Privy Council insisted, would undermine the constitutional guarantees that protected the independence of Jamaica’s higher judiciary — the Supreme Court and the Court of Appeal — from Parliamentary and Executive interference. The CCJ President, however, disagreed with this view.

He said nowhere in the Privy Council judgment was it suggested that in order to adopt the CCJ as the final court of appeal for Jamaica, the Parliament would have to entrench the right of appeal to the CCJ or the regime governing the appointment, tenure or removal of its judges in that country’s constitution.

All that the Privy Council decided, he said, was that in order to adopt an unentrenched CCJ, it was necessary to pass the needed legislation in the manner prescribed for the amendment of entrenched provisions.

He explained that the entrenched provision of Chapter 7 of the Jamaican Constitution relates to the Supreme Court and Court of Appeal, and made no reference to the Privy Council, which is only referred to in Section 110.

This section, de la Bastide said, was not an entrenched provision of the constitution.

According to the CCJ President, the fact that judges of the Supreme and Appeal Courts in Jamaica had their independence protected by entrenched provisions, did not imply the judges of any court that heard appeals from the Court of Appeal must be similarly protected.

He said that both the Privy Council and the CCJ were extra-territorial courts, and that the judges of the CCJ were no more likely to be unduly influenced that the Privy Council would be.

He criticised the Privy Council’s concerns as being raised at a time when the United Kingdom had passed the Constitutional Reform Act, in order to remove doubts amid concern that the Law Lords were themselves susceptible to the exertion of political influence.