23 Aug 2009

Unbelievable Guardian Editorial.

The following is borrowed with consent from The Freedom Chambers ----

This editorial in the Guardian 2009-08-22 is unbelievable. The language used suggests a serious lack of understanding for the nature of the Privy Council and what a Constitution is. There are gaps in some of the issues, which are likely to promote anti-Privy-Council sentiments mouthed by many politicians in T&T.

"This ruling by the Privy Council on its own jurisdiction over Jamaica came despite the fact that the provision in the Jamaica Constitution dealing with appeals to the Privy Council was not entrenched and therefore did not require a special majority."

The editorial fails to quote the judgment of Jamaica's Highest Constitutional Court (i.e. the Privy Council), which explains a seeming anomaly above. The Law Lords said "But an important function of a constitution is to give protection against governmental misbehaviour, and the three Acts give rise to a risk which did not exist in the same way before. The Board is driven to conclude that the three Acts, taken together, do have the effect of undermining the protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution. From this it follows that the procedure appropriate for amendment of an entrenched provision should have been followed." - and that is the crux of their reasoning - which is golden! [However, study of the entire text of the judgment is required to fully appreciate the Court's conclusion.]

"But then the Privy Council, which has a special place in the hearts of many regional lawyers, is not always known for its logical interpretations of regional laws—as shown in the Pratt and Morgan and the Muslimeen amnesty cases."

Poppycock. The Editorial seems to use Pratt & Morgan and a Muslimeen case, as examples of a lack of logical interpretation. Not because one does not understand or appreciate the logic used, means that the logic is wrong. This is how lay persons and even politicians in high places come to very wrong conclusions. The authors of the editorial perhaps lack appreciation for the foundations of legal reasoning.

" In the 2005 judgment on the abolition of the Privy Council, the body also expressly stated that it, sitting as the final Jamaican court of appeal, had no interest of its own in the outcome of the appeal—a most astonishingly self-interested statement."

"Body"? What strange terminology to apply to the country's highest court. Does anybody refer to a court as a 'body' - never heard of it. There was nothing of self-interest in the statement. The Court was simply clarifying its position. The Editorial fails to quote the Privy Council's statements that followed i.e. "The Board exists in this capacity to serve the interests of the people of Jamaica. If and when the people of Jamaica judge that it no longer does so, they are fully entitled to take appropriate steps to bring its role to an end. The question is whether the steps taken in this case were,constitutionally, appropriate." - There is nothing of self-interest there. The Editorial is a victim of its own imagination.

"These high-quality judgments should give confidence to parliamentarians across the region that the CCJ can be trusted to chart our legal destiny and that the time may finally have come to end the sovereignty of the English courts." This is even more confused. The "English Courts" have no sovereign position over people in the Caribbean or those in T&T. In the Jamaican case above the Privy Council said " Thus the Constitution and not, as in the United Kingdom, Parliament is (save in respect of Chapter III of the Constitution) to be sovereign. "

The Privy Council is a Court (not merely a 'body') sitting in England, that is appropriately the highest court for certain sovereign Nations in the Caribbean. The English Law Lords were clear that [paraphrasing here] when the time was right, and the processes required by the various Constitutions were followed to effect change, that it (the Privy Council) should cease to be the highest Court. The matter has nothing to do with how good the CCJ is or might be in the future. This is a matter of Constitutional Law and cannot be won on a simplistic argument about merit.

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