Editorial | Privy Council incompatible with ‘moving on’

This newspaper has more than once invoked US Supreme Court Justice Robert H. Jackson’s explanation of the basis of the infallibility of final courts.

It bears repeating, in fuller context, notwithstanding its elucidation recently by the island’s two top judges – Chief Justice Bryan Sykes and President of the Court of Appeal, Patrick Brooks. Controversies over the Privy Council’s ruling in the Lescene Edwards case and an intellectually flaccid questioning of the judicial integrity of the Caribbean Court of Justice (CCJ) demand it.

Justice Jackson served on the court between 1941 and 1954, except for a year (1945-1946) when he was America’s prosecutor at the post-war Nuremberg trial of Germany’s Nazi leaders. Justice Jackson was known for his sharp aphorisms.

In the 1953 case, Brown v Allen, involving complex arguments of certiorari and habeas corpus rights and when and how federal courts intervene in the actions of state courts, Justice Jackson wrote: “... Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts.

“However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”

Three decades ago, P.J. Patterson, then the prime minister of Jamaica and an eminent lawyer, paraphrased Justice Jackson in signalling his disagreement with the Privy Council’s decision in the Pratt and Morgan case that a delay of more than five years between the conviction of an accused on a capital charge, and his execution, constituted cruel and inhuman punishment.

OVERLAPS

The issues in Pratt and Morgan and Lescene Edwards are not exactly parallel. But, as we noted recently, there are overlaps with respect to the time it took for the final delivery of justice.

Mr Edwards, a former policeman, was accused of murdering his lover and mother of his children. But the UK-based Privy Council, Jamaica’s final court, slammed what it held was biased summation by the presiding judge – the Court of Appeal felt the judge had sufficiently dealt with the defence’s arguments – as well as the 10 years it took between Mr Edwards’ arrest and his trial. That, plus another eight years until the final ruling, infringed his constitutional right to a fair trial within reasonable time, the Privy Council said. The court also criticised the forensic investigation in the case and allowed the defence to adduce fresh expert evidence at the hearing.

One of Mr Edwards’ lawyers, Valerie Neita-Robertson, not only celebrated the decision, but argued that her client couldn’t get justice at home. Implicitly, she used the ruling as an argument for Jamaica to retain the Privy Council as its final court, rather than accede to the decade-old Caribbean Court of Justice (CCJ), the regional court which Jamaica helped to establish and fund.

“Long live the Privy Council!” Mrs Neita-Robertson tweeted.

Mrs Neita-Robertson's public posture coincided with a the resurrection of a worn and long-discredited argument – from which its earliest proponents have retreated – that the CCJ is susceptible to political interference, which suggests that Caribbean judges are spineless, malleable incompetents, incapable of developing quality jurisprudence.

These positions are, of course, factual and logical nonsense. Some might say that the mere postulation of such positions hints of, if not self-loathing, personal doubt. For not only is the CCJ (from the structure of Regional Judicial and Legal Services Commission that appoints judges, to the way how the court is funded) among the best insulated courts in the world, the quality of its jurisprudence has been hailed globally. Neither is there evidence of lapdog judges in domestic courts.

We are happy that Mr Edwards, from his perspective, ultimately received the justice he deserved. But there is a little reported aspect of the case that highlights the fact that the access to justice that he enjoyed at the Privy Council isn’t readily available to people at the lower economic level of the society.

NOT AVAILABLE IN JAMAICA

In adducing new forensic evidence, Mr Edwards’ lawyers explained that the independent forensic expertise they required was not available in Jamaica during the initial trial. Neither could Mr Edwards afford to hire foreign experts. The new evidence adduced at the Privy Council was done pro bono, by foreign experts.

It is for the same reason why most Jamaican cases that reach the Privy Council are murders. They are mostly argued pro bono by British barristers. The vast majority of Jamaicans can’t afford to take their cases to London, even assuming they or their lawyers could get the requisite visas to travel there in the first place.

The CCJ, based in Port of Spain, is altogether more accessible, starting with the right of Caribbean Community to hassle-free movement within the community (per the Shanique Myrie ruling by the CCJ in its original jurisdiction) and the general lower costs of legal services in the Caribbean. Further, not only is the court physically itinerant, it also entertains technology-supported remote hearings, with the judges at their base and other participants scattered around the region.

But a more fundamental point in this debate is who we are and the institutions we want to represent that vision of ourselves. Recently, Prime Minister Andrew Holness told the Duke of Cambridge that Jamaica is “moving on”. More bluntly, we plan to ditch his grandmother, the Queen, as our head of state. This intended repatriation of Jamaica’s ultimate symbol of sovereignty is incompatible with the continued outsourcing to a residual institution of empire our highest rung of justice.

As Justice Brooks told the Queen’s Jamaican representative last week: “The final court is designed to correct mistakes made at the lower level. The Englishman or the Englishwoman, the Welshman or the Welshwoman who is successful in the United Kingdom Supreme Court is able to say that they got justice in their own country not because their Court of Appeal doesn’t make errors but because their Supreme Court is in their territory.”