The Jurisdiction of Superior Courts
Finally, a critical element in ensuring the independence of the judiciary is the actual preservation of its jurisdiction. Obviously, if that jurisdiction could be reduced or taken away altogether, to be entrusted to a less secure body, then this would be a covert means of undermining the judiciary.
The case that best articulates this principle in the Commonwealth Caribbean is Hinds, the Jamaica Gun Court case, where the constitutionality of a new court established by Parliament to try firearm offences was under review.[864] The Privy Council held that while the Jamaican legislature was perfectly entitled to create new courts or entrust existing courts with new names, what it could not do was vest in a new court composed of members of the lower judiciary, a jurisdiction that had previously formed part of the jurisdiction of the Supreme Court.Delivering the judgment of the majority, Lord Diplock explicated in specific terms what the jurisdiction of the Supreme Court entailed, both from an examination of specific constitutional provisions as well as by extrapolation from the inherent nature of the institution itself. With regard to the former, the Jamaican constitutional provisions specified original and appellate jurisdiction in all litigation under the bill of rights as well as any disputes regarding the membership of the Houses of Parliament.[865] Aside from what was explicitly stated, Lord Diplock identified three types of jurisdiction which, in his view, were characteristic of a higher judiciary: unlimited original jurisdiction in all substantial civil cases; unlimited original jurisdiction in all serious criminal offences; and supervisory jurisdiction over the proceedings of inferior courts.[866] Taking away any of this power and conferring it on a differently constituted body, as attempted by the legislation under review, was a surreptitious means of subverting the constitution.
Lord Diplock pointed out that if Parliament could simply strip the Supreme Court of all jurisdiction except that which was explicitly conferred on it in relation to the Bill of Rights and membership of Parliament, then what would be left would be such a restricted or limited jurisdiction that the label �Supreme Court’ would be misleading. According to him, what was most objectionable about this was that...the individual citizen could be deprived of the safeguard, which the makers of the Constitution regarded as necessary, of having important questions affecting his civil or criminal responsibilities determined by a court, however named, composed of judges whose independence from all local pressure by Parliament or by the executive was guaranteed by a security of tenure more absolute than that provided by the Constitution for judges of inferior courts.[867]
A. Removing the Jurisdiction of the Privy Council in Guyana
In Guyana, the assault on judicial independence has centred not only on the manner of appointment of judges, but has also involved this crucial element of jurisdiction. Post-independence, the first and arguably most effective step towards emasculating the judiciary was the removal of the Judicial Committee of the Privy Council as the country’s final Court of Appeal. This was done in stages by the Burnham regime, first by abolishing the right of appeal in all criminal and civil matters not involving constitutional questions when the country attained Republican status in 1970,[868] as well as removing at the same time the right of appeal by special leave of the Judicial Committee.[869] This left appeals to the Privy Council only in constitutional cases, which was eventually removed three years later making the Guyana Court of Appeal the final court on all issues.[870] Once the neutral judges of the Privy Council were out of the picture, a local judiciary stacked with appointees of the ruling party provided no protection for the citizenry against an increasingly dictatorial and illiberal regime, and the reports are replete with cases that illustrate the consequences.
Rights to freedom of expression and assembly and association were particularly endangered, no doubt on account of the threat they pose to a dictatorship. Thus, for example, the ability to criticize the government was stifled by a plethora of defamation suits brought by the President and senior ministers against newspaper editors and leading opposition politicians,[871] the existence of a free press was thwarted in other ways such as by the denial of newsprint and machinery,[872] and assembly and association rights were narrowly interpreted, notwithstanding grandiose declarations in the constitution regarding the political, economic and social system of the state.[873]A compromised judge is most valuable in civil matters, but in serious criminal offences which are triable on indictment it is difficult to control the outcome when decisions of fact are made by a jury of 12 persons. In order to neutralize this safeguard, the government passed the Administration of Justice Act (AJA) in 1978, under which all indictable offences — except a very small number — were converted into hybrid offences. This meant that they could also be tried summarily, that is, before a single magistrate, which naturally made the outcome far more assured. Moreover, under the AJA, the election of how an indictable offence would be tried was taken away from the accused person and left in the discretion of the magistrate trying the case. The result of these changes was that the safeguard of jury trials was removed in all but a handful of extreme cases, clearing the way for politically motivated prosecutions against opponents of the government. Such trials were not left up to chance or fairness, which would be the case where they were determined by jury, but were entrusted to magistrates who could be relied on to imprison or at the very least terrorize political opponents.[874] According to Percy Hintzen and Ralph Premdas, commenting on these developments, �...the judicial system became integrated into the regime’s coercive arsenal to be used against political dissidents arrested and charged with trumped-up offences by the loyal security forces.’[875]
Finally, in 1980, by which time oligarchic control had peaked, the independence constitution was repealed and replaced by another that created the office of Executive President while clothing its occupant with virtually imperial powers.
Included among the package of new measures was one providing that �Parliament may confer on any court any part of the jurisdiction of and any powers conferred on the High Court by this Constitution or any other law.’[876] This provision had not appeared in either of the two previous constitutions and seemed to be included specifically for the purpose of circumventing the ruling in Hinds, for it explicitly allowed Parliament to transfer the powers of the High Court to any other court, however constituted. Thus, the entrenched jurisdiction celebrated and upheld in Hinds, which precluded the government from transferring the jurisdiction of the Supreme Court to one with less protection by ordinary legislation, was removed in one fell swoop. This provision, unique in the Commonwealth Caribbean, has been described by Dr Francis Alexis as a form of �disentrenchment.’[877] It opened up a terrible vista for the survival of the higher judiciary as an institution, though ultimately, it never had to be invoked for so effective was the earlier AJA in achieving the same end of political control.B. Abolition of the Privy Council Appellate Jurisdiction and Substitution with the Caribbean Court of Justice
More recently, the debates and litigation spawned in several territories over regional moves to establish an indigenous court of last resort bring into sharp focus the sensitive nature of judicial independence. In Jamaica, litigation was commenced by several public interest groups challenging the constitutionality of the legislation by which the Jamaican government sought to give domestic effect to the Caribbean Court of Justice (CCJ) Treaty. In Independent Jamaican Council for Human Rights v Marshall-Burnett,[878] the appellants accepted that the right of appeal to the Privy Council could have been abolished by legislation passed by a simple majority of each House of Parliament - an inevitable concession since section 110 of the Jamaican Constitution, in which this right of appeal was set out, was not specially entrenched.
However, the appellants objected to the substitution of the CCJ for the Privy Council as the final court of appeal on the ground that the CCJ did not enjoy the same level of entrenched protections in the Constitution afforded to the Supreme Court and Court of Appeal of Jamaica. Therefore, according to their argument, any change to this structure could only be effected by constitutional amendment, and the failure to enact the relevant laws by the applicable majorities rendered the legislation ineffectual.The Privy Council accepted these arguments and held that the Acts by which these changes had been purportedly made undermined the protection afforded Jamaicans by the entrenched provisions of Chapter VII of the Constitution. Since the procedures required for amendment of an entrenched provision were not followed, and since the two aspects of the legislation — abolition of the Privy Council and substitution of the CCJ — were inextricably bound up, there could be no severance and the legislation was declared wholly void.
The safeguards that currently exist in relation to the higher judiciary in Jamaica were identified as being their manner of appointment, security of tenure and conditions of service, all of which were designed to ensure their insulation from executive pressure or interference. Significantly, the Agreement Establishing the Caribbean Court of Justice provides similar safeguards for judicial independence, covering all the very same issues as appointment, service, remuneration, and so on as exist in relation to the higher judiciary of Jamaica. However, these were dismissed by their Lordships as inadequate, on the ground that the treaty could be amended by agreement of the parties followed by ratification, both executive acts which would thereafter take effect in Jamaican law by simple affirmative resolution. Notably, the Privy Council obtains no level of entrenchment in the Jamaican Constitution, nor are there any procedures by which the independence of that body can be guaranteed.
But like Caesar’s wife, their Lordships are apparently above reproach, unlike the judges of the CCJ and in spite of the fact that the latter are likely to be chosen from among only the best of Caribbean jurists.The Privy Council’s conclusion that the CCJ judges lack adequate independence was surely speculative. Furthermore, it is fanciful to suppose that the CCJ Agreement, which provides elaborate safeguards for judicial independence, can be easily changed so as to weaken or undermine the court’s independence. To amend this Agreement in order to achieve such nefarious ends would require a conspiracy to subvert the rule of law of widespread and far-reaching proportions, an unthinkable prospect given that it would also require the consent of member states. That judicial independence is properly safeguarded under the Agreement therefore hardly seems to be in doubt.
At any rate, comparisons to their Lordships’ Board and discussion of the potential dangers of amending the Agreement were unnecessary for this decision given the central problem identified with the legislation, which was its failure to entrench the right of appeal to the CCJ in the constitution. What their Lordships meant by this was that once the CCJ was established, there would be nothing to preclude any subsequent government from removing it as the final court of appeal and substituting its own court, so that in Lord Bingham’s view, the �three Acts give rise to a risk which did not exist in the same way before.’[879]
This possibility was not entirely speculative, given the precedent already set in the Caribbean by the United National Congress (UNC) while in power in Trinidad and Tobago assenting to the CCJ Agreement and then having second thoughts while in opposition.[880] But it does seem highly exaggerated. Any future attempt to replace the CCJ by a constitutionally less secure court could be invalidated by the reasoning in Hinds, at least where the holders of any new court are not appointed on the same terms and in the same manner prescribed for persons exercising such jurisdiction. In other words, the jurisdiction conferred on any future court or tribunal could be scrutinized on the authority of Hinds to ensure, ultimately, its �independence from political pressure by Parliament or by the executive.’[881] Exaggerated or not, however, as illustrated by the Guyanese experience tampering with the judiciary is the first step by which the executive is allowed to operate unrestrained and in violation of the rights of citizens. For all of its undiplomatic posturing and potential overreaching therefore, the decision of the Privy Council in this case underlines the premium placed on the independence of the judiciary. As pointed out by Lord Bingham, such independence is indispensable for the reason that �...Ihe protection of judges from executive pressure or interference...is all but universally recognized as a necessary feature of the rule of law.’[882]
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