Just when I thought I had heard it all in the contemporary debate on the matter of Jamaica abolishing appeals to the London based Judicial Committee of the Privy Council (JCPC) I was thrown another shiny object by the Minister of Legal and Constitutional Affairs at a meeting held at the official residence of Jamaica’s High Commissioner to London. In response to the question as to why Jamaica is hesitating to abolish appeals to the JCPC and why it is hesitant about acceding to the appellate jurisdiction of the Caribbean Court of Justice (CCJ), the Minister informed those in attendance that the government is considering what she dubbed the “Hong Kong model”. It is, of course, the first time that either the Minister, the prime minister or for that matter any member of the Cabinet, has made public, its admiration of the Hong Kong model, about which she was glowing.
It is, of course, the first time that either the Minister, the prime minister or for that matter any member of the Cabinet, has made public, its admiration of the Hong Kong model, about which she was glowing.
The Hong Kong model
By the Hong Kong model, which she did not define, one takes it of course that she is referring to the situation that has obtained in Hong Kong, since 1997, when that country abolished appeals to the JCPC which coincided with that country being handed back to the Peoples Republic of China (PRC). Accordingly, Article 82 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, confers on the Chief Executive to appoint to the Hong Kong Court of Final Appeal (HKCFA), as the need arises, judges from throughout the common law world. In this connection I hasten to add that in Hong Kong those who sit on the HKCFA are either: permanent judges, non-permanent Hong Kong based judges and another category of non-permanent judges (NPJ) from other common law jurisdictions. Invariably, those NPJs recruited from the common law world, are either serving or retired jurists from Canada, New Zealand, the United Kingdom (UK) and Australia, who have been senior jurists in those countries. In fact, when one visits the court’s website, it does reveal that the current President of the UK Supreme Court, Lord Reed, along with his predecessor as President of the UK Supreme Court, Lady Hale sat as a NPJ on HKCFA.
Unlike what occurs in the judiciary of the Pacific Islands, where non-Pacific Judges (with the exception of perhaps the Courts in Papua New Guinea) can be found in the majority on a bench in a given case, in the HKCFA in Hong Kong, by virtue of the provisions of the applicable law, the HKCFA when hearing a case, does have a limit of one overseas NPJ per case. The immediate benefit of such a law is that it does ensure that decisions of the Court have a heavy influence on local conditions and realities.
Is this a model for us? Well in answering that question, (which is being contemplated by the PM and his Minister) it must be noted that the Jamaican circumstances are far different to that with which Hong Kong was dealing with at the time of hand-over. In that Jamaica does have a deep historical commitment to the rule of law, as it is understood by those who follow that tradition. China does not follow that tradition and thus with the loss of the Judicial Council of the Privy Council, this caused some in the commercial and legal communities to be concerned that the system that existed would be cast aside. Consequently, with an eye on commerce, it was decided, during the discussions that led to the Sino-British Joint Declaration, that since the Privy Council would no longer be accessible, Hong Kong should make it possible for judges from that Court to go to Hong Kong with their expertise, independence and international reputation.
Is this a model for us?
The Gold Standard of the Caribbean Court of Justice
I am in support of access to fertile and experienced legal minds, as this does enhance the quality of the jurisprudence that emerges from any court. This is what we have in the Caribbean Court of Justice, which has maintained a gold standard in its recruitment of some of the finest legal minds that we can find in the Caribbean, whilst managing not to exclude from service to the people, jurists from outside of the region. To this end I am sure that the Minister would agree with me that Mr Justice David Hayton, a past President of the CCJ was a first-rate legal mind with phenomenal expertise in national and international Trust. Equally the recent addition to the Court in the form of Mr Justice Ebo-Osuji, who served as the 4th President of the International Criminal Court (ICC) and as Legal Advisor to the United Nations High Commissioner for Human Rights in Geneva, is testament to the fact that in its stellar twenty year history, the CCJ has managed to attract and retain non-native permanent judges (NNJ), thereby bringing to the business of the development of Caribbean Jurisprudence a non-Caribbean but still common law dimension that I would be the first to admit can only be beneficial. These were (President Hayton is no longer with us) and are permanent appointments, unlike the system of non-permanent appointments that currently obtains in the HKCFA. Consequently, there is no need for a situation where, which some writers have suggested obtains on the HKCFA, local judges sort of keep the NPJs in check and true to the Caribbean conventions, in the pursuit of an initiative. This is because these are permanent Judges who are immersed in the Caribbean realities as unlike the NPJs of the HKCFA, they reside in the region where they get to experience the everyday realities of Caribbean life and are not merely flown in for a set period, as they are part of the permanent regional Judicial furniture.
I am in support of access to fertile and experienced legal minds, as this does enhance the quality of the jurisprudence that emerges from any court.
Jamaica’s reality is different from that of Hong Kong
In the light of the foregoing and having looked at the high quality of the opinions delivered by the Judges of the CCJ in its appellate jurisdiction, one is forced to ask the question: why would the PM and his responsible Minister, be advocating as an option, when Jamaica eventually abolishes appeals to the JCPC, the adoption of the practise of the HKCFA, of inviting NPJ to sit on a proposed Jamaican Court of Final Appeal (JCFA)? What is it about the CCJ’s sterling contribution to the evolution of Caribbean jurisprudence and its continued independence, that this government finds unattractive or unsuited to Jamaica’s future? It must be something that no one has yet seen. Frankly they are obliged to come clean and point to that which would render the court one that lacks independence, expertise and a continued commitment to the rule of law. This the government should do before inviting us to consider the Hong Kong model, which was adopted by that region because it was in a unique position in 1997, where the local legal and commercial communities wanted to maintain the one country two legal systems model, as a guarantor of Hong Kong’s commercial realities. We are not faced with that reality, and we are not short of practitioners who want to sit on the Caribbean Bench throughout the region, as was the case in Hong Kong. In fact there is a healthy (some say disproportionately ) transition of lawyers who have served in the public sector who have transitioned to the Bench and if we have a problem, it is that not enough practitioners from the private bar aspire to and apply to sit on the Caribbean Bench.
What is it about the CCJ’s sterling contribution to the evolution of Caribbean jurisprudence and its continued independence, that this government finds unattractive or unsuited to Jamaica’s future?
One is saddened by this consideration of the Hong Kong model, not because we do not want judges from other jurisdictions to sit on our cases. However, it is because that system already exists as part of the approach used by the CCJ and the Jamaican taxpayer is already paying for this. If you are of the view that this is all but a smokescreen as the PM and his cabinet dithers, then I am inclined to agree with that view. That is a persuasive view, as the first PM to moot the possibility of Jamaica establishing a JCFA, has gone on record in repudiating that briefly held view and has commended the impeccable opinions delivered by the CCJ.
Funding the vanity project
There is of course the issue of the costs of funding this vanity project that the Jamaica Labour Party (JLP) seems it wants us to consider. Of course we are already paying for the CCJ. Shall we assume that it will be asking or inviting donor countries to fund our own final court, to escape asking taxpayers to come up with even more money to pay for non-resident judges, in circumstances where additional spending could go towards mainstreaming the use of modern technology in our courts throughout the island? The Pacific states, a region with a high degree of foreign Judges (resident and non-resident) as part of its judiciary, have funded this feature in part from donor countries such as Australia, New Zealand and the United Kingdom.
Shall we assume that it will be asking or inviting donor countries to fund our own final court, to escape asking taxpayers to come up with even more money to pay for non-resident judges, in circumstances where additional spending could go towards mainstreaming the use of modern technology in our courts throughout the island?
This should scare any serious Jamaican, and if they are not concerned, they should familiarise themselves with concerns that have been raised in some Pacific states, about non-native judges sitting in cases, where the specific state is in a legal dispute with the country from which the non-native judge hails, the judge having been provided under an aid programme funded by that country. I am not suggesting for a second that foreign judges will lack independence, as that would be a ridiculous point to make let alone demonstrate. However, it would not be correct in discussing this issue, to ignore the fact that where a judge is serving in his home country and is also invited to serve (concurrently) on the proposed JCFA, his or her first commitment or allegiance will be to the oath that he or she has taken in her home country. This is a point that some say was demonstrated by fear of English Judges resigning from sitting as NPJs on HKCFA, after that implementation of the National Security Law in Hong in June 2020. The National Security Law, in brief, served to place limits on the exercise of civil rights in Hong Kong by criminalising any act of: secession, subversion, and collusion with foreign or external forces and terrorism. The UK Judges are still sitting on the HKCFA (rightly so) but do we want to court that type of unnecessary attention in a region where our laws for example define marriage as a union between a man and a woman.
Where a judge is serving in his home country and is also invited to serve (concurrently) on the proposed JCFA, his or her first commitment or allegiance will be to the oath that he or she has taken in her home country.
The Prime Minister should rethink the adoption of the Hong Kong model
As the Jamaican PM contemplates what he is being advised by the person who had advised him to push on with the National Identification System(NIDS)å Bill that was eventually struck down in its original guise, he should pause and appreciate the point that was implicitly made by Prof. Stephen Vasciannie in his 2016 essay “Constitutional Change in Jamaica: The Monarchy, The Final Court and Questions of Abolition” : the debate on abolishing appeals to the JCPC at this stage is a purely political one, as the parties have taken entrenched positions on whether there should be a referendum, which both agree is not mandatorily required by the Constitution. Adding the Hong Kong model will not solve but will further widen the political gap between the parties on this issue. Consequently, the PM and the rest of the cabinet, should politely tell the Minister of Legal and Constitutional Affairs to figet the Hong Kong model, as it is a needless obfuscation of an issue that is in urgent need of resolution, as we are burning our money each day that we spend on the outside of the appellate jurisdiction of the CCJ.
Adding the Hong Kong model will not solve but will further widen the political gap between the parties on this issue.
Matondo Mukulu is a practising Barrister.