Nicholson. a major blow against opponents of CCJ

THE Privy Council effectively ruled yesterday that the Jamaican Parliament can abolish appeals to the UK-based court without the need for major constitutional amendments - a decision that was being interpreted by the government last night as removing a substantial hurdle to the island's participation in the Caribbean Court of Justice (CCJ).

In their judgment, the law lords held that Jamaican Dave Antonio Grant, who had lost his bid in the local courts to be extradited to the United States for a drug case, had no fundamental right to apply for special leave to be heard by the Privy Council.

Jamaican law gave the Court of Appeal the final say on extradition matters, the Privy Council agreed.

Delroy Chuck

But it is the implication of the ruling for the politically-charged debate over the CCJ, which is to be the final court of appeal for several Caribbean countries, that will give the Privy Council's decision added gravamen.

"It is a major blow to those who contend that the Parliament is not competent to abolish special leave by the Privy Council without at the same time abolishing the Queen as the head of state," Attorney General A J Nicholson, told the Observer.

Nicholson's position echoed that of Solicitor General Michael Hylton, who argued, too, that perhaps the most important element of the ruling was the inability of the Privy Council to imply into the language of the constitution the Queen's right to grant special leave to her subjects.

"The language of the constitution was clear and the court was therefore bound to apply it," Hylton said in a statement.
"A similar argument has been raised by some who opposed the proposed Caribbean Court of Justice and who have argued (that) the court should imply additional requirements into the constitution," Hylton added. "Perhaps this decision will cause them to reconsider their position."

Yesterday's ruling came three days ahead of a Court of Appeal finding on a challenge of the Constitutional Court's decision that the Opposition Jamaica Labour Party (JLP), and other opponents of the CCJ, were premature in challenging the constitutionality of the court, even before Parliament had debated the laws for its establishment.

The groups sought to short-circuit debate on the legislation and push their case for a referendum on the court.

The lower court, agreeing to preliminary points raised by government lawyers, had held that the bills would have to be first passed by the legislature before the case could be attacked in the courts.

But yesterday, government officials felt that even if the Appeal Court was to now rule that the substantive case be heard, the Opposition would face an uphill task in their arguments of having the CCJ replacing the Privy Council as Jamaica's final court.

"The Privy Council's ruling would be very, very persuasive and, as we see it, fatal to their case," said a senior government official. "It is a hard knock for those who insist that the Caribbean Court would be unconstitutional."

However, the shadow justice minister, Delroy Chuck, argued that the Privy Council decision would have little impact on their case.

The Grant challenge, he said, was not on the same grounds that the Opposition had sought to attack the CCJ Bills. Grant relied on a section of the constitution outling the right to seek special leave to by heard by the Privy Council.

"We, the Opposition, had not based our arguments on that, though other attorneys had," Chuck said. "So, it's not likely to affect other areas of substance that the Opposition is relying on in relation to seeking to oppose the CCJ. We felt that the procedure was flawed."

In the case on which the Privy Council ruled, Grant was convicted in Texas on a drug offence in 1998 but fled to Jamaica ahead of his sentencing. He was ordered extradited by the Jamaican courts, but appealed the decision and lost.

Grant then sought special leave of the Privy Council to appeal, but the Jamaican authorities opposed the application saying that the UK-based court had no jurisdiction to hear such an appeal.

Under Section 21a of Jamaica's appellate jurisdiction law, the authorities argued, habeus corpus matters, the basis of Grant's application, rulings by the Court of Appeal were final.
The Privy Council judges agreed.

They pointed out that the right to grant leave to appeal was no longer the sole prerogative of the Crown and that since independence the Jamaican Parliament has had the power to amend or repeal UK legislation, which formed part of the law of Jamaica.

"The effect of these statutory provisions is that since independence the Parliament of Jamaica has been competent to enact legislation limiting or abolishing appeals to the Judicial Committee of the Privy Council," the law lords said. But such alterations must comply with the provisions of the constitution.

In relation to Section 21a of the appellate jurisdiction law, the Privy Council said: "When the Parliament of Jamaica introduced the right of appeal to the Court of Appeal by Section 21a, it made plain by Subsection (3) that there would be no further appeal. Thus, there could be no question of an applicant being entitled to appeal as of right to the Board from a decision of the Court of Appeal. Nor could there be any question of the Court of Appeal having a discretionary right to grant leave of appeal to the Board. Their lordships can see no basis for concluding that, in these respects, the decisions of the Court of Appeal was final, but that finality was to leave open an appeal pursuant to special leave granted by the Board. That would not achieve the intended finality."

The law lords said that a more problematic issue was the argument of the need to amend Section 110 of the constitution, setting out the rights of appeal to the Privy Council.

But said the judges: ". Would abrogation of appeals to the Board, following a grant of special leave by the Board require an alteration of the constitution? On the face of Section 110 the answer to this question is 'no'. Section 110 (1) and (2) grant defined rights of appeal to the Board. Section 110 (3) is expressed in negative terms. It does not grant any rights.
Entitlements to an appeal to the Board does not derive from this provision or any other provisions in the constitution.
Entitlement to such an appeal derives from the Judicial Committee Acts, continued in force on independence along with all other existing laws by Section 4 (1) of the Jamaica (Constitution) Order in Council 1962."

Even where Section 110 (3) of the constitution appeared to assume the existence of a right of appeal to the Privy Council the law lords said, "the draftsman has carefully catered for the possibility of change by using the phrase 'any right' rather than 'the right'."

The judges found that the effect of the language of the constitution was anomalous with the three routes of appeal to the Privy Council attracting different levels of protection.
Concluded the judges: ". Whatever may be the explanation of this, their lordships consider the language of Section 110 (3) does not admit of the interpretation that thereby the right of appeal to the Board on special leave granted by the Board was implicitly affirmed to the extent of endowing this right with similar constitutional status to the rights expressly granted by Section 110 (1) and (2)."

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