By Barbara Gayle, Staff ReporterFRANK PHIPPS, Q.C., the chairman of the Farquharson Institute of Public Affairs, said it is regrettable that the Government plans to press ahead with the Bills in Parliament to establish the Caribbean Court of Justice (CCJ), without waiting for a decision from the courts.
The motions brought by Opposition Leader Edward Seaga and other claimants were dismissed on a preliminary point taken in court by Solicitor-General Michael Hylton, Q.C. The claimants are contending that the Bills to establish the CCJ are unconstitutional because the court will not be a permanent one such as the Supreme Court and Court of Appeal because it will not be enshrined in the Constitution of Jamaica.
The matter is now before the Court of Appeal. Mr. Phipps was making a presentation earlier this month on 'Access to the CCJ' at a conference on the Mona campus of the University of the West Indies (UWI).
"I cannot sit without issuing a challenge to members of the School of Graduate Studies and Research for them to consider finding a way to make Jamaica a truly independent nation with a democratic Constitution, rather than trying to put a square peg into a round hole by inserting a court into an imperfect and inadequate Constitution," he said.
THE REAL QUESTION
Mr. Phipps said the Constitutional Court "shied away" from the real question presented in the cases and dismissed the claims on a preliminary objection. He said the court accepted the submission of the Solicitor-General and, holding on to the basis of separation of powers in governance, that the courts of Jamaica could not prevent Parliament from debating the Bills. He said what was clear, and not needing the court's decision, was that any consideration of the substantive issues involved for access to the CCJ as a final court of appeal for Jamaica must of necessity include consideration of the abolition of the right of appeal to her Majesty in council. He said in governance, Jamaica is a creation of the United Kingdom Parliament by way of an order of Her Majesty in Council.
In referring to section five sub sections, one and two of the Constitution, Mr. Phipps, in questioning whether the provisions mean that Her Majesty empowers an authority to make laws, said the authority has power to establish other authorities to perform functions in the order, but not a legislature or a court. "In other words, the order in council may establish a parliament and the parliament may establish other authorities to perform functions in the order, not being a legislature or a court. Such a conclusion carries serious implications for a CCJ", he emphasised.
FINAL COURT OF APPEAL
Mr. Phipps said that in the present situation, consideration must be given first, to how the CCJ could be established and then how the CCJ could replace the United Kingdom Privy Council as a final court of Appeal for Jamaica to review decisions of the courts that were deeply entrenched in the Constitution. "Ultimately, if amendments to the Constitution are necessary to achieve the two objectives then further consideration must be given to the provisions in paragraph six of the First Schedule to the Jamaica Independence Act and to section 49 of the Jamaican Constitution regulating the procedures for amendments."
