Privy Council proposal violates J’can Constitution – King’s Counsel

As debate on Jamaica’s final appellate court intensifies, its King’s Counsel Group has written to the registrar of the Judicial Committee of the Privy Council (JCPC), objecting to its proposed ‘review of merit’ rule, calling it a violation of the Jamaican Constitution.

The group has asked that the proposal be reconsidered.

The letter, a copy of which was seen by The Gleaner, is dated May 17, the final day of consultation on a number of proposed new rules on how the apex court will operate. The rules are scheduled to take effect in October.

The JCPC serves as final court for Jamaica and several other Commonwealth countries.

Michael Hylton, chair of the King’s Counsel Group, has his signature affixed to the letter.

“The group is of the view that this proposed procedure is fundamentally wrong in principle,” Hylton said in the letter.

“Under Jamaica’s Constitution and the constitutions of some other countries that maintain the JCPC as their final appellate court, a litigant is entitled, as of right, to appeal to the JCPC in certain cases. Those appeals have always involved an oral hearing, usually before a panel of five or more judges,” he added.

Deprive litigants of right

Hylton said what has been proposed by the Privy Council, by simply changing its procedural rules, will deprive litigants of that right.

“In our view, that change would be contrary to the intent of our Constitution, and to the legitimate expectations of Jamaican litigants,” the letter further stated.

It said the Constitution also gives a right of appeal in civil cases where “in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise”, ought to be submitted to His Majesty in Council.

It said the consequence of the proposed change would be that in cases where three judges of Jamaica’s Court of Appeal have applied the test required by the Constitution and given the appellant leave, a single judge of the Privy Council may effectively overrule them, by applying a different test.

“The Constitution envisages that, because a matter is of great general importance, a litigant is entitled to have our apex court consider and rule on it. The proposed change would take away that entitlement, on a different basis,” the letter noted.

“We respectfully invite the JCPC to reconsider this proposal,” it added.

The ‘review of merits appeal’ rule, a major development that will effectively reduce the number of cases brought by appellants from jurisdictions it serves, is among several new rules set to take effect months from now.

The Privy Council had embarked on a month-long consultation process on a revision of the rules with stakeholders that ended last week.

The proposed new rule, which was tested late last year, received strong objections, forcing the Lord Robert Reed-led JCPC to consult.

It wants only a single judge to review an appeal from an appellant where permission has been granted by the court below or where the appellant has a right of appeal under the constitution of the jurisdiction from where the appeal comes.

The single member will consider each appeal for which the Privy Council has not given leave, to determine whether it is “devoid of merit”. This would include appeals brought as of right pursuant to the constitution of the relevant jurisdiction, and appeals in relation to which the Court of Appeal has granted leave.

If the single judge is of the view that the appeal is “devoid of merit”, the appellant will be invited to send written submissions, and a panel of three or more justices may then decide to dismiss the appeal without an oral hearing.

kimone.francis@gleanerjm.com