Privy Council based on Ideological Grounds?

They must love our prime minister in Jamaica. At any rate, judging by their invitations to deliver keynote addresses before their most august bodies. Doubtless Saint Lucians will easily recall Kenny Anthony’s speech before a graduating class at Norman Manley Law School, if only because it tended to validate the widespread suspicion that some of our lawyers were “willing conduits of launderers who utilize their client accounts to protect proceeds of drug trafficking.”
The quoted indictment had moved Richard Frederick, not yet a declared politician, to call Newsspin and tell Timothy Poleon it was a downright shame the prime minister, himself also a lawyer, had not only tarnished before a foreign audience the reputations of his law colleagues but also that of Saint Lucia. If what he alleged in Jamaica was worth anything, fulminated a clearly affronted Frederick, “then why didn’t he supply the appropriate authority with the incriminating details.” He suggested the prime minister “either present his evidence to the police or shut up!”
In more recent times Kenny Anthony has twice returned to Jamaica, to pay tribute to the regional politician of his generation that he most admires and to hold forth on the all-important subject of law and justice in the Caribbean, on the latter occasion at Mona. For the benefit of his audience at the Round Hill Hotel in Hanover last Saturday, this was how he recalled his first meeting some thirty years ago with his favorite politician:
“It was the decade of the 1980s. The PNP had just lost to the JLP. In Saint Lucia, a promising center-left government of the party which I now lead had succumbed to internecine warfare and collapsed. At the time I was a young Minister of Education, just turned thirty. In the wake of the gloom and doom, I traveled to Jamaica to seek solace and advice from a politician that I had never met before. From him I received advice that I have never regretted. Thus began an admiration and friendship that have endured to this day. That man was P. J. Patterson.”
Hmmm. So now we know, those among us who preferred to believe the young Kenny Anthony had like a low-down coward abandoned ship upon encountering his first storm at sea. Actually, in Lapses & Infelicities he offers a fairly in-depth account of the “doom and gloom” period—albeit without any mention of an advisor or a Jamaican dispenser of solace!
As touching and revealing as was his tribute last week to the former Jamaican prime minister, it was Kenny Anthony’s keynote address at the opening of the 50/50 Law and Justice Conference in Kingston that rang bells in my head. No surprise that he began with the following words of another Jamaican hero Norman Manley, “one of Jamaica’s greatest advocates and one of its Founding Fathers,” delivered at the time of the nation’s independence in 1962:
‘Comrades, it is one thing to become free; it is another to build a real nation. It is our tragedy today that where history has placed power and leadership in the land, it has not placed tongues to rouse the people to the greatness of the times. It has not raised up a voice among them who could rise to the occasions of these days; who could lift up the new dynamic which would be alive from one end of the land to the other.’
“Today, we must still ask the question,” said Anthony in his own voice. “How have Jamaicans built this nation? By what yardstick can we measure the progress of a nation? How can one determine the truth of its success? How have the people of this country done in the building of the ‘real nation’ of which Manley spoke? Are Jamaicans today, fifty years after Independence, better aware of their greatness or potential for greatness as Manley had hoped they would be one day?”
Could similar questions be asked of Saint Lucia? If Jamaica had had its episodic disruptions, for the most part centered on sometimes shocking drug-related crime, still it could not be denied that its world image has less to do with Dudas than with Bolt; less to do with the off-stage performances of Buju Banton than with Bob Marley, his familial successors, Sean Paul and a host of other talented Jamaicans   that have done their country proud. If diplomacy prevented Saint Lucia’s prime minister from assessing before Jamaicans “the heights of greatness achieved by this nation through its illustrious sons and daughters,” then so be it. He also chose atypically to be politically correct and not assess “the disappointments the nation has faced in terms of economic growth, poverty, crime or social inequality.” After all, he was at heart not so much a savvy politician as “a simple lawyer.” And what do simple lawyers do if not expound on the law—and justice?
“The fact that the constitution and laws of Jamaica are well written provides cold comfort if constitutional provisions have not been interpreted and applied in the collective interest of the people,” he said, before echoing the Greek philosopher Anacharsis: ‘Written laws are like spiders’ webs; they will catch, it is true, the weak and poor, but would be torn in the process by the rich and powerful.’”
I couldn’t help thinking of the many in Saint Lucia who are daily denied justice because they cannot afford lawyers’ fees; because here there is no such thing as legal aid.
As if further to underscore his last point, he cited provisions of the 1977 Constitution of the Union of Soviet Socialist Republics that guaranteed citizens freedom of speech, of the press and assembly, meetings, street processions and demonstrations but, according to a scathing Justice Scalia “were not worth the paper they were written on, as are the human rights guarantees of a large number of still-extant countries governed by presidents-for-life.”
At this point my mind flashed back to an accused Saint Lucian who has been incarcerated for seven years at Bordelais while he waits to be tried on charges he raped and murdered 13-year-old Verlinda Joseph. Of what use to him, then, is the constitutional provision that guarantees citizens a speedy trial on the basis that justice delayed is justice denied?
I thought too about the two murderous madmen, also at Bordelais. While the courts here had sentenced them to hang, the Privy Council had recommended, for various reasons, that they be retried. By the look of things, they will die in prison (which will doubtless please their Christian brethren who live by the Scriptural eye for an eye standard) before they hear of a trial date.
“The search for identity of a legal system is as legitimate a preoccupation for judges as much as it is for politicians, social activists, artists and commentators seeking to define the soul and being of their nation,” said Kenny Anthony in Jamaica.
“It is therefore legitimate to ask whether Jamaican judges have, in the words of Edward Seaga, erected a structure that fits the ‘sociological pattern’ of Jamaica.” He reminded his audience that under the separation of powers “the executive makes policy, the legislature enacts law and the judiciary applies the law. Each must be careful how it interferes with the other.”
Perplexingly, for me, he added: “Although judges must not step into the sphere of the legislature and make law, there is also an expectation that they will recognize the difference in the approach to interpretation or the construing of ordinary legislation, and to the interpretation of the constitution.”
An expectation on whose part? I’m not sure I get the point here. Is it that judges are having a hard time interpreting their constitutions as well as “ordinary legislation?” If so, then whose fault is it? Since it is the politicians who make law, might the problem be related to their incompetence or worse?
I cannot help but recall the amendment to the Finance (Administration) Act in the last days of the previous administration, when the present prime minister (a constitutional lawyer) was leader of the opposition, yet unquestioningly permitted the House, via one clause, to make it unlawful to guarantee loans without prior debate and then by another clause authorized the loan guarantee under whatever conditions a minister might choose—without even the necessity of notifying the House. Yes, it sounds crazy but there you have it: an interpreter’s future headache!
Then there are the stated demands of the Integrity Commission that to date have never been met, and the defaulters who’ve never been held accountable. Indeed, the commission continues to break its own laws!
He came to the issue of capital punishment, in particular, to the Privy Council’s argument that “prevailing levels of crime and violence, however great the anxiety and alarm they understandably cause, cannot affect the underlying legal principle at stake, which is that no one, whatever his crime, should be condemned to death without an opportunity to try to persuade the sentencing judge that he does not deserve to die.
“I must confess that I am not an admirer of the Privy Council judgments in death penalty cases,” said Kenny Anthony, “as I believe the Privy Council decides such cases on ideological grounds rather than jurisprudential logic.” Thank goodness that he hastily added his was merely a passing observation and of no account. More important was the question: Have Jamaican judges been bold?
“How can we expect a court to be bold when it is not the final court?” he asked.  “How can it be expected to ‘erect a structure of our own’ in these circumstances? Is this not a compelling reason for abolishing appeals to the Privy Council?”
What compelling reason? That by his personal measure Jamaican courts are not bold? He acknowledged the answers were far from clear.
“If the Jamaican courts were ever accused of not being sufficiently bold in the 50 years since Independence,” he said, “the blame could not lie solely in the existence of the Privy Council as a higher court. There have been times in its history when the English Court of Appeal has been regarded as revolutionary, bold and innovative, notwithstanding the House of Lords was superior to it and capable of rapping hard on the knuckles of its judges. Have the Jamaican courts been short of activist judges? When the Privy Council is replaced with the CCJ as Jamaica’s final court of appeal, will this concern be automatically lessened? Will Jamaican courts be bolder when their higher court is a regional one? Are we comfortable with a judiciary that does not merely follow the absolutist mode of interpretation but boldly follows a purposive or generous mode of interpretation? Do Jamaicans want a bold and innovative court? Do Jamaicans like bold and courageous judges?”
Do Saint Lucians? I seem to recall that when certain local judges were “bold” enough to insist on the court’s right to determine prison sentences based on the law, a particular government had decided on “rapping them hard on the knuckles” by taking away their discretion. To no avail, I happily add.
Nevertheless, it is interesting to note that at least one Caribbean prime minister may have moved from the suggestion that the lack of regional support for the CCJ evinces an inferiority complex imposed on us by our former colonial masters. Perhaps the perceived lack of confidence has less to do with bold or wimpy judges than with pro-CCJ politicians who too often hold themselves above the law, who use state trappings to conduct personal vendettas against perceived enemies, and who, with their obvious personal prejudices, not to say ambitions, may be seeking to dump the
Privy Council for their own narrow ideological reasons that may have more to do with Cuba than with the British courts or the United States. And that’s scary. I mean, really scary!

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