The Judicial Committee of the Privy Council (JCPC) has recanted on its recent “review of merits of appeal” Rule 23 Proposal following objections raised by the Jamaican Bar Association (JAMBAR) in a letter last week.

Rule 23, which had caused a stir in legal circles here, had proposed the formalisation of the process by which appeals to the Privy Council would be reviewed by a single Privy Council judge, or possibly a panel of three such judges, who would then determine whether that appeal, which would have been granted by a court below, was “devoid of merit”.

Following that review it would be decided if the appeal should proceed in the same way as an appeal for which permission has been granted by the Judicial Committee and, if not, the appellant would be given 21 days to file submissions outlining why the appeal should not be dismissed without being heard.

JAMBAR in a May 14 letter to the JCPC raised concerns about the consultation process generally and Rule 23, stating that the rule would have resulted in an additional barrier to the exercise of an appellant’s constitutional right, given that sections 110 (1) and (2) of the Jamaican Constitution allow appeals which are heard by the Privy Council to appellants “as of right” or after the Court of Appeal has determined the appeal is of great general or public importance.

Following a virtual meeting between the JAMBAR president, Council Member Maurice Manning, King’s Counsel (KC); and chair of JAMBAR’s Constitutional and Human Rights Committee Carlene Larmond, KC; with deputy president of the Privy Council Lord Hodge; and Privy Council Registrar Laura Angus on May 22, Lord Hodge indicated that the Practice Direction would be suspended, and Rule 23 withdrawn from the proposed revisions.

The JCPC, in a brief statement on the issue on its website, simply said “In the light of the responses to our consultation on the proposed new rules, the board has decided not to proceed with proposed Rule 23 and is suspending the operation of Practice Direction 4.7.1 pending further consultation on a suitable case management arrangement”.

On Thursday, JAMBAR said, in the meantime, it “also secured the opportunity to provide comments on other proposed revisions to the rules and to consult further with the Privy Council on the alternatives to Rule 23 which would be aimed at assisting litigants in identifying appeals that may be without merit to save time and costs without derogating from their right of appeal”.

Responding to the development, prominent attorney Peter Champagnie, KC, who had been among the first to publicly voice concern about the proposed change, said it is an even clearer indication that Jamaica needs to decide on a future without the UK-based court.

“The most recent development surrounding this issue reinforces the point that I made originally, and that is that the attitude and treatment of the Judicial Committee of the Privy Council towards us, where we make our appeals there is ambivalent and continues to be, and this reinforces it,” he told the Jamaica Observer.

According to Champagnie, that vacillation has manifested itself from different levels within the Privy Council and is untenable.

“In times past we have had persons from the board saying that the hearing of appeals from this jurisdiction is onerous and the inference therefore is that we should consider removing ourselves from there, and then up to recently there was Lord Reed (head of the JCPC) who said that the treatment of appeals from our jurisdiction was not an issue and that the numbers were not significant to be an issue at all. But now we have a situation where there was this additional rule which has now been amended,” Champagnie pointed out.

“I still affirm the position that we need to have some serious introspection in terms of where we want our final apex court to be and that in that dispensation, as a condition precedent, we must have a referendum. It is far too much of an important point not to do that,” Champagnie opined.

“It may well be that at the end of the exercise we may become wedded to the Caribbean Court of Justice, or it may well be that we remain with the Judicial Committee of the Privy Council and, of course, there is always the third option of formulating our own apex court beyond the court of appeal,” the respected barrister said.

According to Champagnie, while the JCPC’s decision to concede on the proposed new Rule 23 is to “be applauded in one sense” he has “grave reservations” about it in another respect.

“It supports the point which I have been making that they continue to blow hot and cold in relation to how they view us and their service in relation to treatment of appeals from this jurisdiction,” Champagnie declared.

The development comes even as the JCPC, in a May 8 statement on its website, said Lord Reed, president of the UK Supreme Court and the Judicial Committee of the Privy Council, has had his proposal to enable overseas judges to sit on the JCPC approved by the Government. It said the court and the Ministry of Justice are now working on detailed arrangements to welcome judges from countries served by the JCPC, subject to the approval of His Majesty the King.