THE EDITOR, Madam:
I REFER to the recent editorial published in your newspaper of Friday, July 21, under the title 'Frivolous Appeal To Privy Council'.
The fundamental question raised by your editorial is the right of every citizen and the Government, on behalf of the citizens of Jamaica, to resort to the Court for the determination of legal questions. It is quite disturbing that a newspaper, particularly one of such considerable influence, should seek to arrogate to itself the right to determine the legal question as to whether a decision to appeal "is both frivolous and time-wasting".
The Courts have been established as independent and impartial bodies to decide such issues. To question the fundamental right of any litigant to have access to the Court, any Court, is a dangerous precedent which should never be followed. Is the suggestion being made that a line should be drawn between the right of the Government as opposed to that of individuals; or are we embarking on a slippery slope on which the fundamental rights of all individuals will be imperilled? On either hypothesis, the position taken by The Gleaner is wholly indefensible and unacceptable.
The characterisation of the issue by the newspaper as a 'simple point of law' is not only an assertion of extreme arrogance but it fails to recognise that what may appear to be a simple point of law can, and does, often become a cause celebre when the final curtain falls in the judicial determination thereof.
But 'the simple point of law' identified by the editorial "namely whether the Junior Doctors' Association and its Central Executive are legal entities capable of being sued under the Labour Relations and Industrial Disputes Act" (LRIDA) and your conclusion that all three judges unanimously held that the Attorney-General had sued the wrong parties demonstrate a complete misunderstanding of the issue that was before the Court. The real point is that this question, that is, the jurisdiction of the Court to restrain a party under the LRIDA, involves an interpretation of that Act and this issue, as stated by the Court of Appeal itself, had been argued before that Court when it pronounced on the Supreme Court's decision to grant the injunction.
Others in the society see alarming consequences for what you term a "simple point of law". They argue that the Government negotiates with various groups of workers on behalf of the people of Jamaica. They say that the question must be posed as to whether contracts between the Government and 'unincorporated entities' are valid. If the answer is yes, then there needs to be some mechanism to enforce these contracts outside of a gentleman's agreement.
Your editorial is premised on the assumption that the question of the appeal is a fait accompli. In my submissions, it was indicated that consideration was being given to pursuing an application for special leave to appeal to the Privy Council. Even now, no decision has been taken to file the application. You should be aware that any such application for special leave does not mean that an appeal exists as of right. In any such application, the Privy Council, in determining the merits, will consider inter alia whether the application is frivolous and a waste of time. These are matters that that Court considers on every application for special leave and your statement, therefore, that the decision to pursue the application is frivolous is, at best, premature on all counts.
There are three other points that I wish to make with respect to the editorial. First, under our present constitutional arrangements, the Judicial Committee of the Privy Council remains our final court of appeal. So long as these arrangements continue, the Government, like any other litigant, has a right to submit questions to that body for final adjudication. It cannot, therefore, be seriously contended that, because the Government is contemplating the abolition of appeals to the Privy Council and replacing that body with a Caribbean Court of Justice, it should not avail itself of the existing legal arrangements for final adjudication of questions which it perceives to be in the best interest of the Jamaican people.
Second, there is no plausible basis for the question posed at the end of your editorial to the effect that, because of the several factors mentioned by you, any move by the Government to appeal to the higher body is an indication that the Government has no faith in our local court to adjudicate on such a 'simple point of law'. That is clearly a non sequitur. No reasonable inference can be drawn that the Government, in utilising the present constitutional arrangements, is, by so doing, demonstrating 'a lack of faith in our local court'. Indeed, the point that is being sought to be argued in the higher court was not canvassed before the Court of Appeal at all.
Third, on the question of expense, it is to be hoped that in as much as you encourage the Government not to pursue this appeal because of the undoubtedly high cost, you will also firmly embrace the wholesome pursuit by the Government to have a final Court established here in the Caribbean, sitting in Jamaica if necessary, to make the right of final appeal affordable to our citizens. So that, we accept your admonition that due diligence ought to be conducted by Government in deciding whether to pursue any appeal on behalf of the country's citizens. At the same time, it must be acknowledged that as far as the private citizens of Jamaica are concerned, the enforcement of that right constitutes an extraordinarily expensive venture and may only be pursued by the very rich or by condemned persons who have been convicted of capital murder. In the latter case, whatever expenses that ensue, are borne by the Government and people of Jamaica.
I am, etc.,
DOUGLAS LEYS,
Deputy Solicitor General
Attorney General's Chambers,
P.O. Box 456,
Kingston.
