Robinson: Privy Council rulings irrelevant to discussion on removal of British body as final court

On the eve of Supreme Court Justice Andrea Thomas’ rejection of the habeas corpus application for incarcerated dancehall star Vybz Kartel and two of his three co-accused to be released on bail, Jamaican jurist Patrick Lipton Robinson argued that the case would have illustrated why Jamaica should remove the United Kingdom (UK)-based Privy Council as its apex court, even if their murder convictions had been upheld.

Robinson served as a judge of the International Court of Justice from 2015 until this year.

During the launch of former Attorney General A.J. Nicholson’s book, titled The Roadblock: Jamaica’s Resistance to the Caribbean Court of Justice, at the Faculty of Law, The University of the West Indies, last Wednesday, he said the Privy Council is unsuitable to be Jamaica’s apex court, because it is a foreign body with no real experience of Jamaican life and culture. He added that it was wrong for Jamaicans to be bound to a foreign court as a condition for its independence, and, in his view, their dismissal of the murder conviction of Kartel, born Adidja Palmer, and the three other men in March, illustrated their deficiency in the exercise of their judicial function.

“There’s always unfavourable comment in Jamaica about our Court of Appeal when the Privy Council reverses one of its decisions in a well-known case. But I want to be clear about one matter, the need to replace the Privy Council with the Caribbean Court of Justice (CCJ) does not rest on the number of decisions from the Jamaican Court of Appeal that are reversed or upheld by the Privy Council, although the statistics are not unfavourable to Jamaica,” Robinson said during the launch event, where he was one of numerous speakers.

“And more specifically, it does not depend on the reversal by the Privy Council of the Jamaican Court of Appeal’s decision in the Vybz Kartel case. Indeed, the need would remain even if the Privy Council had affirmed the decision of the Jamaican Court of Appeal,” he said.

Another reason why Robinson argued Jamaica must terminate its relationship with the Privy Council is because he believes that body’s retention is an unacceptable expression of Jamaica’s independence and sovereignty.

He said that in 2009, Lord Philips, president of the UK Supreme Court, complained that at his job he had to spend too much time on cases from the Commonwealth - 40 per cent of their working hours.

And, he said, in an ideal world, such countries would stop using the Privy Council and set up their own final courts. After that, there should immediately be set in motion the process to sever ties with the Privy Council and accede to the appellate jurisdiction of the CCJ,” Robinson said.

He said although one or two Jamaican judges might be invited to sit at the Privy Council for a case, such an invitation does not alter the compelling conclusion that Jamaica must rid itself of the Privy Council, because its retention is an unacceptable reflection of our independence.

“At the same time, the invitation illustrates that we have absolutely no power over the constitution or operation of our final court,” Robinson argued. “A Jamaican judge will only sit on the Privy Council if he or she has been invited to do so. Jamaica, as an independent sovereign State has no room in the appointment of the judges of its final court. How can that be right?” he questioned.

He said that in another 10 years, it may very well be that a new president of the Privy Council might revert to the hostile and unwelcoming attitude adopted by a previous Lord.

“What do they take us for? Dem a tek we fi idiot!” Robinson said.

He stressed that the Privy Council deserves no special credit for withdrawing its rule 23 review, which he said would have violated sections 1 and 2 of the Jamaican Constitution. Instead, he said, credit is due to the Jamaican Bar for voicing their concern in the matter.

“The basis for this proposal is arrogance, not ignorance, because the Privy Council is well aware of these sections of our Constitution. That arrogance remains, and will undoubtedly return to haunt us again,” Robinson said.

“The Privy Council did the right thing in withdrawing its proposal and respecting the Jamaican Constitution, but ladies and gentlemen, make no mistake, this was an act of grace and consideration, not a reflection of a legal duty to make rules consistent with the Jamaican Constitution,” he said.

Democratic governance

He insisted that Jamaica and the 10 other states that utilise the Privy Council as their final court is not consistent with democratic governance.

“It is not as though we are party to a treaty that established the Privy Council as the final court. All of this illustrates the compelling nature of the conclusion, that we must leave the Privy Council, because its retention is not an acceptable expression of our independence and sovereignty,” Robinson said.

He said states without a treaty do not outsource their judicial sovereignty to other states, as Jamaica now does with the Privy Council.

Also present at the book launch were Sir Dennis Byron, former president of the CCJ; Donovan Walker, who represented the Organization of Commonwealth Caribbean Bar Associations; and Hilary Phillips, former appeal court judge in Jamaica.

Nicholson’s book is about the challenges along Jamaica’s meandering journey in the crusading effort to move away from the Judicial Committee of the Privy Council as the country’s final court of appeal in the UK and to accede to the full jurisdiction of the CCJ, whose judges would journey to our shores to adjudicate on appeals coming from Jamaica.

For his part, Robinson said, “Jamaica, including its Bar, played an important role in the finalisation of the terms of the CCJ agreement.”

Also present was Mark Golding, leader of the Opposition, who has recently come under criticism for having British citizenship while serving as the leader of the People’s National Party.

ainsworth.morris@gleanerjm.com