Former CCJ president declined offer to join Privy Council

While on Jamaican soil last week, Sir Dennis Byron, former president of the Caribbean Court of Justice (CCJ), who was born in Basseterre, St Kitts, expressed satisfaction at declining an offer to sit on the Judicial Committee of the Privy Council (JCPC) in the past.

The JCPC is the court of final appeal for the United Kingdom (UK) overseas territories and Crown dependencies.

The JCPC was also a hot topic last week Wednesday, on the eve of the then upcoming hearing for the habeas corpus application for incarcerated dancehall star Vybz Kartel and two of his three co-accused in the downtown Kingston High Court, during the launch of former Attorney General AJ Nicholson’s book titled The Roadblock: Jamaica’s Resistance to the Caribbean Court of Justice.

The book launch took place at the Faculty of Law, University of the West Indies, Mona.

Sir Dennis was a guest speaker and panellist there.

The Privy Council, in March, dismissed the murder conviction of Kartel, born Adidja Palmer, fellow dancehall entertainer Shawn ‘Storm’ Campbell, and two others.

Sir Dennis noted his declination to the Privy Council while responding to questions posed by moderator Hilary Phillips, former appeal court judge in Jamaica.

He also warned Jamaicans against being taken in by the new Privy Council pitch and underscored the need for a final appellate court, based in the Caribbean, saying that this could serve to drive sustainable development in the region.

This comes in light of the current debate concerning Jamaica’s continued ties with the UK-based Privy Council as the country’s final appellate court.

President of the UK Supreme Court Lord Reed recently highlighted that possible opportunity for judges from countries, like Jamaica, that retain the Judicial Committee of the Privy Council as their final court, and Sir Byron describes as out of order, the invitation for Caribbean judges to sit on the Privy Council.

Sir Dennis said during a broadcast last week on Radio Jamaica’s Beyond the Headlines that he would be disappointed if ever the invitation was accepted.

The opposition People’s National Party (PNP), of which many of its current and past parliamentarians were present at the book launch, including its leader, Mark Golding, has maintained that constitutional reform cannot be complete until the CCCJ is adopted as the final appellate court.

Sir Dennis is one of many pushing the motion for Jamaica to make the CCJ its highest court and stripping the Privy Council of its ultimate power.

On the other hand, Sir Dennis, who headed the CCJ from 2011 to 2018, is not the only experienced member of the judiciary who wants to see this major transformation come to life. So, too, do Justice Patrick Lipton Robinson; Donovan Walker, president of the Organization of Commonwealth Caribbean Bar Associations; and Nicholson.

Sir Dennis is of the view that justice for Jamaicans should not be administered by a foreign court as, he says, Jamaicans going to a foreign court does not reaffirm faith in fundamental human rights, signifies the continued existence of colonialism, which prevents the development of the international economic cooperation, and impedes the social, cultural, and economic development of dependent people.

He believes that it is the CCJ that should have the last say for Jamaicans who are not satisfied with the ruling of the High Court in Jamaica.

“The CCJ has achieved, has attracted, praise in many areas. One such area was or is in relation to the institutional arrangements which carries independence. Several commentators have written on the subject of the selection process … and have almost unanimously affirmed that they are models for international courts,” Sir Byron said.

“It’s a historical fact that Britain extended written constitutions to its former colonies, and a feature of these constitutions is that they specifically declared the constitution is the supreme law with which other laws must be compliant,” he said.

He said Britain never had a written constitution, and its fundamental law was based on the premise of Parliament.

“Now, in countries with written constitutions, courts are required to ensure that laws passed by Parliament are compliant with the constitution. In Britain, the courts have no such power … so this a major conflict between our respective judiciary systems,” he said.

He argued that in Britain, the courts have no supervisory power over what is enacted by Parliament.

“In the Caribbean, we have the supremacy of the constitution, while in Britain, there is the sovereignty of Parliament, so the Caribbean constitutions manifest a deliberate legislative intent to impose and cheer on the sovereignty of Parliament,” he said.

He also suggested that the perspective of descendants of those who suffered abuse of human rights during the colonial empire must be treated differently from the descendants of those who abuse those rights.

“Particularly, even now, they refuse to admit the abuse and go along with the concept of reparations,” he said.

Sir Dennis also believes that there still is an issue of human inequality between Britain and Jamaica.

“Here we are, more than half a century after independence, the non-judicial arms of government have not removed the imperative colonial laws which contravene human- rights provisions of the constitution,” Sir Byron said.

He went on to question, “Should the role of the Caribbean courts be defined by the constitution of the British constitutional lawyer or judge whose perspective is fundamentally different from that of the Caribbean man?”

He said laws that predate the creation of the 1976 constitution, and, but for the savings clause, would be exposed to constitutional challenge for breach of the fundamental rights in Section 4 or 5 of the constitution, will continue to exist only so long as Parliament chooses to have them remain.

Robinson, a former judge of the International Court of Justice, who followed Sir Dennis’ response, indicated his happiness over his co-panellist previously declining the offer of the Privy Council for the advancement of his career.

“I applauded when my brother told you that he declined the proposal to sit on the Privy Council. He had discussed it with me, and I had given him my views. What he did was entirely in accordance with those views,” Robinson said.

He continued: “The matter that he does raise is of fundamental importance - fundamentally important legal issues [of] how the savings clauses are interpreted and that he was courageous enough to look at it.”

Robinson, for his part, believes that Jamaica should accede to the appellate jurisdiction of the CCJ.

ainsworth.morris@gleanerjm.com