Editorial | Right call, Justice Panton

Seymour Panton is on point. Any Jamaican judge invited to make a guest appearance on a board of the Judicial Committee of the Privy Council (JCPC) should reject it out of hand.

The proposal smacks of tokenism; is insulting to the jurisprudential development of Jamaica; and, on its face, seems an effort by Lord Reed, the JCPC’s current head, to manufacture a sense of inclusiveness around the Privy Council and thereby extend the relevance of the court.

Instead Jamaica and other independent Caribbean countries that retain the JCPC as their apex court should withdraw forthwith and accede the appellate jurisdiction of the Caribbean Court of Justice (CCJ).

In Jamaica’s case that can be uncomplicated, achievable in half a year – the three months that the bill to entrench the CCJ as the island’s final court would have to sit on the table of Parliament before debate, the similar period after the debate before it is voted on.

Moreover, those bills already exist from the Portia Simpson administration’s (2012-2014) collapsed attempt to accede to the regional court, which was blocked by the political opposition, at least one of whose senators’ vote was required for the necessary two-thirds majority in the Upper House.

DISCUSSED FOR SEVERAL DECADES

Jamaica’s participation in a regional final court has been discussed for several decades, and up to the later part of 1990s enjoyed cross-party support. The consensus frayed as the CCJ became imminent. Edward Seaga, then leader of the Jamaica Labour Party (JLP), the post-independence proponent of a regional final court, withdrew the party’s backing.

The issue is again at the centre of political debate in the face of efforts at constitutional reform by Prime Minister Andrew Holness’ JLP administration. Mr Holness hopes to start by removing King Charles III, the British sovereign, as Jamaica’s head of state, making the island a republic.

Critics of this approach, including this newspaper, argue that the proposed phasing would be a philosophical, intellectual and symbolic absurdity. King Charles would be ditched as Jamaica’s head of state, yet Jamaicans would still petition the king, through a committee of his advisers, the Privy Council, for justice from their highest court.

It is into this debate that Lord Reed – who as president of the UK’s Supreme Court is also head of the JCPC – plunged himself by doubting The Gleaner’s assertions of claims by at least one of his predecessors, Lord Phillips, that cases to the Privy Council consumed too much of the time of the judges of the UK’s apex judges. Lord Phillips even suggested that judges of lower UK courts might be assigned to hear Privy Council cases.

More recently, addressing students and law faculty at The University of the West Indies (UWI), Mona, Lord Reed disclosed that he had approached the British government to change the rules to allow him to “invite senior judges from outside the UK to sit with us again on the Privy Council”.

“This is not currently possible in relation to most of the Privy Council jurisdictions under the legislation which governs appointments,” he said. “The exceptions include judges of the Eastern Caribbean Supreme Court, the High Court of Trinidad and Tobago and the Supreme Court of Jamaica, who can sit on the Privy Council if they are first appointed as Privy Counsellors.”

ACQUIESCED

Last week, Lord Reed announced that the British government had acquiesced.

Significantly, current British law limits Privy Council judges to people who hold “high judicial office” in the UK, with the exception, as Lord Reed noted, being those who had the loophole of being appointed Privy Councillors, or advisers to the King. And noticeable, per Lord Reed’s language, the foreign judges on whose experience the British law lords might draw for “direct experience of local conditions” would be “invited” to sit on boards. There is no indication that they would sit on the JCPC as of right.

“I expect that if a Jamaican judge is offered such (a seat on a Privy Council Board), he or she will reject such an offer out of hand,” Justice Panton, a former president of Jamaica’s Court of Appeal, told this newspaper. “We do not need or want these pickings at this time in our history as a supposedly sovereign nation.”

The last Jamaican judge to sit on Privy Council board was the former chief justice, Edward Zacca, more than two decades ago, in the second of two such summer stints separated by a decade. But that was a different point in Jamaica’s and the Caribbean’s history.

Lord Reed’s proposal, as Justice Panton concluded, is an insult to CCJ. It is also a clear affront to Jamaica.

Lord Reed may find efficacy in retaining the Privy Council and for the value he believes it offers to the expansion to global jurisprudence. But that’s no guarantee that our loitering in colonial premises will be tolerated forever.

As the former JLP prime minister (2007-2011) said in a 2015 article in this newspaper: “I am ... concerned that even if we choose not to leave the Privy Council, it can choose to leave us, notwithstanding the periodic assurances we receive from the UK. The hearing of our appeals represents a cost to the British government that has so far survived austerity measures, but that is hardly a basis for confidence that our judicial arrangements are secure.”