Letter of the Day | Jamaica needs to detach from Privy Council

THE EDITOR, Madam:

Earlier this year, the judges of our highest court, the Privy Council, introduced a new procedure for dealing with “appeals as of right” from jurisdictions such as ours. This emasculates the right that was provided to the citizens of Jamaica when the Jamaican Constitution was brought into force upon Independence in 1962.

This new procedure now vests in their Lordships a discretion as to whether or not they will entertain an appeal from Jamaica. The constitutional right, as hitherto provided and interpreted, is no longer absolute. In simple language, it has been ‘watered down’.

It is difficult, if not impossible, to conclude other than that this approach by the superior judges in the United Kingdom is meant to send a further signal that they would prefer that arrangements were made by Jamaicans for our final appeals to be adjudicated elsewhere.

CONSISTENT

This is consistent with the theme in extrajudicial utterances by different law lords at different times, that appeals from countries like Jamaica are taking up an extraordinary amount of time of their superior court judges, with their message gathering strength in recent times.

There is that teachable moment of Lord Leonard Hoffmann’s in his address to the legal fraternity of Trinidad and Tobago in 2003. His frank, signpost advice as to how, for us here in the Caribbean, our own final appeal court could be beneficial to transforming society in partnership with the other two branches of government.

Lamenting how the remoteness of the Privy Council had been a handicap, he said: “(W)e have been necessarily cautious in doing anything which might be seen as inappropriate in local conditions and although this caution might have occasionally saved us from doing the wrong thing, I am sure that it also sometimes inhibited us from doing the right thing”.

Then in 2009, four years after the inauguration of the Caribbean Court of Justice, the announcement of Lord Nicholas Phillips, the first president of the newly created UK Supreme Court, could certainly not have been more pronounced.

He warned that if we were not prepared to release ourselves from the attachment to the Privy Council, his court of appeal judges would be drafted onto the panels that would hear our final appeals, in order to “save the judicial time of his superior court judges”. With us woefully ignoring that direct notification, it is public knowledge that his threat has been carried out.

I remain firmly of the view that the imposition by the executive arm of the British government of the requirement that has rendered Jamaicans as the only people in all history obliged to obtain a travel visa to be present in one of their courts, is sending the message of being unwelcome, as this condition constitutes a fetter on the constitutional right to unhindered access to one’s court of justice.

It is clear, general knowledge of utmost significance that the arrangements attendant on the circumstances that obtain at the pinnacle of our judicial system remain tragically untenable, and surely cannot be allowed to continue.

No counter exists to the ‘in your face’ widely held persuasion that the remedy to regularise this humiliating situation lies in acceding to the appellate jurisdiction of the accommodating, internationally commended Caribbean Court of Justice.

Is it not shamefully regrettable that the members of the Jamaican legislature, armed with the power to quickly move the country away from these continued, unwarranted assaults on our constitutional arrangements, are unconcerned that Jamaica’s citizens remain entangled in that correctable predicament?

DOUGLAS LEYS

Attorney-at-Law