Editorial | Privy Council’s rule 23

There has been a surprising paucity of public debate in Jamaica – and other countries in the English-speaking Caribbean that retain the Judicial Committee of Privy Council (JCPC) as their final court – over proposed new rules that could, on its face, further limit cases from these jurisdictions, as a matter of right.

Maybe the Jamaican Bar and other stakeholders have quietly engaged the Privy Council on the matter. If they have, they – including the government’s legal advisers and related agencies – should publicly share their positions so as to contribute to broader, informed, and transparent, national debate of the issue.

In the event that the Privy Council’s invitation for consultation, which closes in five days, was unnoticed, interested parties can’t now meet the deadline for participation, they should urgently request an extension of time. After all, a single month is hardly sufficient time to formally solicit responses to such an important proposal.

The JCPC is overhauling the rules and procedures by which it manages the cases it hears from a slew of British overseas territories, and around a dozen Commonwealth countries, mostly in the Caribbean, for which it remains their apex. The regulations are expected to come into force later this year.

The potentially contentious matters are contained in the proposed rule 23, as it applies to cases that don’t need specific permission for appeal from the JCPC because (as outlined in draft rule 20) “the court below has exercised its discretion to grant permission or because the appeal is an appeal of right for which the court below has granted final leave to appeal”.

In those instances, a single Privy Council judge, it is proposed, will review the matter and decide whether “the appeal should proceed in the same way as an appeal for which permission has been granted by the Judicial Committee”, or that the appellant be given 21 days to file submission of which the appeal shouldn’t be “dismissed without hearing on the grounds that it is devoid of merit”.

Those submissions, if filed, would be heard by a three-judge panel. They would decide if the case remains thrown out, or proceeds to appeal.

ENHANCE EFFICIENCY

The suite of rules, including as well as new portals for the digital filing of cases, the Privy Council explained, is to enhance the efficiency of the court. Rule 23, in that sense is, presumably, to ensure that the court isn’t clogged with unmeritorious matters.

Indeed, Delroy Chuck, Jamaica’s justice minister, says the JCPC’s proposed weeding-out of process would be in line with what most higher courts, including Jamaica’s Court of Appeal, do. Except that the Court of Appeal isn’t Jamaica’s apex court. In most circumstances, its rulings can be appealed against.

But perhaps the more important context for rule 23 – and why the question deserves debate – is whether it collides with the constitutional right of Jamaicans to access their final court.

Section 110 (1) of the Jamaica’s Constitution says:

“An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council as of right in the following cases –

(a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of one thousand dollars or upwards, final decisions in any civil proceedings;

(b) final decisions in proceedings for dissolution or nullity of marriage;

(c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution; and

(d) such other cases as may be prescribed by Parliament.

The question for some experts, therefore, is whether these declared rights to appeal to the Privy Council presume, and ought to guarantee, unfettered access to that court, without more, once all domestic hurdles have been cleared.

It is a constitutional matter some lawyers probably wish to interrogate if rule 23 is finalised in its current form.

TAKE IT THERE

But as Michael Hylton, a leading Jamaican and Caribbean attorney, told this newspaper: “But they (the Privy Council) are our final court, so we have to take it. It is not as if we can appeal against it or overrule them.”

Mr Hylton first raised concerns about rule 23’s potential to further squeeze access to the JCPC (which most years hear fewer than a dozen cases from Jamaica) at a colloquium last October of Caribbean-trained lawyers, who made the case for Jamaica’s accession to the appellate jurisdiction of the CCJ.

With the rule seemingly imminent, he told The Gleaner it was “another reason to leave”. This newspaper concurs.

In the meantime, since, if implemented, rule 23 can’t be challenged, maybe the Privy Council and its head, Lord Reed, might wish to provide an advisory ruling on its constitutionality with respect to Jamaica.