he should not now be penalized for accepting the
advice of Leading Counsel. Finally, it is
submitted that recourse to the Judicial Committee
in instances in which an application is likely to
fail would involve the submission of a large
number of unmeritorious petitions to the Judicial
Committee, with damaging consequences for the
judicial procedure before that body. Such a
consequence, it is submitted, cannot have been
the purpose of the rule laid down in article 5 of
the Optional Protocol.
3.7
As to the requirement of exhaustion of
domestic remedies, counsel recalls the
Committee’s established jurisprudence that
remedies must not only be available but also
effective, and that the State party has an
obligation to provide some evidence that there
would be a reasonable prospect that domestic
remedies would be effective. He submits that
neither a petition for special leave to appeal to
the Judicial Committee of the Privy Council nor
a constitutional motion in the Supreme
(Constitutional) Court of Jamaica would provide
effective remedies.
3.11
Counsel further asserts that a
constitutional
motion
in
the
Supreme
(Constitutional) Court does not provide the
author with an effective domestic remedy. In this
context, he advances three arguments: firstly,
Section 25 of the Jamaican Constitution, which
provides for the “enforcement” of the individual
rights guaranteed under Chapter Three of the
Constitution, including the right to a fair trial,
would not provide an appropriate remedy in the
circumstances of the case, as “enforcement”
within the meaning of Section 25 would involve
ordering a second re-trial which, more
than 10 years after the murder of Mr. Johnson, is
an impractical proposition. Secondly, it is
submitted that the proviso to Section 25,
paragraph 2, namely that the Supreme Court shall
not exercise its powers if it is satisfied that
adequate means of redress for the contravention
alleged are, or have been, available to the
applicant, applies to the author’s case. Finally, a
constitutional remedy is not “available” to the
author, because the State party does not grant
legal aid for the purpose of filing constitutional
motions in the Supreme Court, and lawyers in
Jamaica are generally unwilling to argue such
motions on a pro bono basis.
3.8
In this context, it is submitted that the
case cannot be brought within the ambit of
Section 110, paragraphs 1 and 2, of the Jamaican
Constitution governing the modalities under
which the Court of Appeal may grant leave to
appeal to the Judicial Committee of the Privy
Council. Firstly, at no stage in the judicial
proceedings did a question as to the
interpretation of the Jamaican Constitution arise,
as required by Section 110, paragraph l(c).
Secondly, the general criteria for granting
leave to the Privy Council in Section 110,
paragraph 2(a) (a question of great general or
public importance or otherwise such that it ought
to be submitted to the Privy Council) were not
met in the case.
3.9
As to the power of the Judicial
Committee, under Section 110, paragraph 3, of
the Constitution, to grant special leave to appeal
from a decision of the Court of Appeal, counsel
affirms that any application for special leave
requires the submission of a legal opinion from
Leading Counsel, to the effect that there is merit
in seeking leave. In the author’s case, Leading
Counsel, the President of the Bar Council
(United Kingdom), has advised that the
substantive issues involved do not fall within the
narrow jurisdiction of the Judicial Committee.
Leading Counsel considers that although there
were weaknesses in the evidence against the
author during his re-trial, as well as in the
handling of the defence case, the likelihood of
the Judicial Committee to grant special leave to
appeal in respect of those matters would be
remote.
The State party’s observations
4. The State party, by submission of 20 July
1986, contends that the communication is
inadmissible on the grounds of non-exhaustion of
domestic remedies, since the author retains the
right, under Section 11 of the Jamaican
Constitution, to petition the Judicial Committee
of the Privy Council for special leave to appeal.
It adds that it issued the written judgment of the
Court of Appeal of Jamaica on 17 March 1986
and that it was available to the author and to his
counsel; legal aid would be available to the
author to petition the Judicial Committee
pursuant to Section 3, paragraph 1, of the Poor
Prisoners’ Defence Act.
3.10
To petition the Judicial Committee in the
current circumstances would involve discarding
highly qualified legal advice that such an avenue
would be inappropriate; counsel submits that
since the author has diligently considered the
possibility of petitioning the Judicial Committee,
55
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