Editorial | Loitering at the Privy Council

Happily for Sir Patrick Allen, he does not have to stand in a queue at the British High Commission in St Andrew to apply for an entry visa if he wants to visit his boss, King Charles III, in London.

As the governor general and the king’s avatar in Jamaica, Sir Patrick and his wife, Lady Allen, as the British high commissioner, Judith Slater, reminded recently, have vignettes affixed to their Jamaican passports to signal to UK immigration officers that they are exempt from visas and are to be afforded special treatment – for two years. Or more precisely, new vignettes are placed in their passports every two years. Which we suppose means once they remain governor general and spouse.

Unfortunately for the overwhelming majority of the king’s other subjects in Jamaica, they cannot expect this privilege even when attempting to access the king’s justice at Jamaica’s final court, the Judicial Committee of the Privy Council (JCPC), which is based in, and only exceedingly rarely sits anywhere, but in London. This, of course, is not the only reason Jamaica should, as a matter of urgency, exit the JCPC as its final court as part of the process, as Errol Barrow, the former Barbadian prime minister, Errol Barrow, put it on the eve of that country’s Independence in 1966, ending our “loitering on colonial premises”. For as the respected Jamaican lawyer Michael Hylton noted, the Privy Council, whether deliberately or not, has been further constricting access to the island’s apex court. But from a distance, their actions seem suspicious, in the face of previous remarks from the court’s judges about cases from outside of the UK taking up too much of their time.

CEREMONIAL PRESIDENT

The Holness administration’s plan in its current constitutional reform project, is to abolish the monarchy that places the British sovereign as Jamaica’s head of state (represented in the island by the governor general) and declare the island as a republic, with a ceremonial, rather than executive, president. Which is a good thing that should be aggressively pursued. The symbol of Jamaica’s autonomy, its agency and its aspirations should be someone to whom the vast majority of Jamaicans can relate.

But as psychologically important as the repatriation of this element of the island’s sovereignty is, of equal weight, and of more immediate practical value, is enhancing access to the apex court, from which most Jamaicans are effectively shut out. Indeed, the case is more than compelling for Jamaica’s accession to the criminal and civil jurisdictions of the Caribbean Court of Justice (CCJ), the regional court, which Jamaica helped to establish and fund, except in its original jurisdiction, in which it interprets the Revised Treaty of Chaguaramas – the compact that established and regulates the Caribbean Community (CARICOM).

Edward Seaga, one of Prime Minister Andrew Holness’ predecessors as leader of the Jamaica Labour Party (JLP), who harboured a strategic and tactical distrust of Caribbean integration, blocked Jamaica’s accession to the CCJ, presumably for ideological and political reasons. It is not this newspaper’s sense that Mr Holness ever seriously shared those supposed ideological concerns to the regional court, or believed, as some opponents of the CCJ argued, that it would be intellectually incapable of delivering a high quality of justice and jurisprudence. Which the court, in its 18 years of delivering judgments, has thoroughly debunked.

And neither can it be any more of any political value for Mr Holness to signal antipathy to the court. In a recent opinion survey, six of 10 (59 per cent) of Jamaican adults supported Jamaica acceding to the court, and it is very likely that most of those who say they are uncertain would join the ranks of the supporters. Political self-interest, if not opportunism, should propel Mr Holness to support the CCJ.

And there is the expected value of joining the court.

JUDGMENTS

Addressing a dialogue in the CCJ last week from Barbados, one of the court’s justices, Jamaican Winston Anderson, noted that in the five years between 2016 and 2021, the Privy Council delivered 20 judgments on appeals from Jamaica. By contrast, the CCJ delivered 52 judgments on cases from Guyana, 43 from Barbados, and 28 from Belize. This newspaper’s own tabulation published in May for the decade up to 2022, suggested a similarly meagre performance by the JCPC with respect to judgments on appeals from Jamaica – an average of 3.7 cases a year.

Yet, Jamaica’s Court of Appeal determines more than 300 cases annually (400 in 2022). On that basis, it would be expected that more matters would reach the island’s final court. That this is not so is explained in part by the sense of the psychological and other distance from the JCPC, and the cost of reaching that court, especially for people who are unlikely to have a British special privilege immigration vignette applied to their passports. Indeed, there is logic why it is a handful of mostly well-heeled individuals, large corporate entities, or murder convicts, whose cases are usually handled pro bono by British human-rights lawyers, whose cases reach the Privy Council.

At last week’s discussion, there were plenty of reminders of the several statements by Privy Council judges wishing to be rid of the loiterers, who command too much of their time. Very telling, too, was Mr Hylton’s observation: in the current term – only two cases from the Commonwealth are scheduled by the JCPC; the number for the same period last year was 22.

We should listen to the judges.