The Privy Council vs the Caribbean Court of Justice as Jamaica's final court

BYRON BLAKE

Saturday, December 05, 2015

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I have refrained from entering the debate on the issue of the replacement of the Privy Council of the United Kingdom by the Caribbean Court of Justice (CCJ) as Jamaica's final court for the simple reason that I was so close to the arguments and decisions relating to the establishment of the Caricom Single Market and Economy and the CCJ in its two jurisdictions that I thought others should be free to express their opinions.


The superficial nature of the debate, if it can be so described, especially in the Senate; the Page 1 editorial in the Daily Observer of Friday, October 23, 2015 'CCJ: How dare you appropriate the people's rights unto yourselves'; and Ronald Mason's column in the Sunday Gleaner, October 25, 2015, have forced me to reconsider.


Important to that changed position is Mason's correct assertion that "one must question the content... [and that] both sides are offering unsubstantiated claims to support their respective positions". Perfectly correct, but then Mason proceeded to make some outlandish claims. Two examples should suffice. One: "The Organisation of Eastern Caribbean States (OECS) ...has its own court. Why is it impractical or impossible for us?" The implication of this statement is that the OECS has its own final appellate court. This is untrue. The OECS, in collaboration, has a single appeal court the equivalent of Jamaica's Court of Appeal or Supreme Court. The individual members still have the Privy Council as final court with Dominica at an advanced stage of decision to move to the CCJ.


Two: "When the time comes for some country that currently subscribes to the CCJ to give the requisite three years' notice of an interest to withdraw, how permanent will the CCJ then be?" The CCJ is established by treaty. Its permanence is not dependent on the membership at any point in time. A member will not only have to withdraw from the CCJ; it will have to withdraw from the Revised Treaty of Chaguaramas and even then it continues to finance the court for the use of the others since it will not be refunded its initial investment in the court.


I resist the temptation to point to the several other weaknesses in Mason's contribution. I will instead highlight some salient points for consideration by Jamaica and in particular the Senate.


1. Did anybody in Jamaica vote for the Privy Council to be Jamaica's final court?


2. Was it an accident or omission that the Privy Council was not entrenched in the Independence Constitution of Jamaica? It is more plausible to think that the Constitutional Committee, which comprised both sides of the House, did not intend it to be our permanent final court. They, therefore, did not construct any major hurdle to it being replaced when the time comes.


3. Do we realise that the Sovereign Government of Jamaica cannot, today, guarantee any citizen access to the Privy Council, the country's final court? It can neither guarantee that the Privy Council will sit in Jamaica nor that a citizen who wishes to avail himself/herself of the service of the court will obtain a visa for same or that any local counsel will. It cannot even guarantee that the attorney general or any particular member of that office will be able to prosecute the case. Access to the Privy Council requires a Jamaican citizen to obtain a British visa. The sale of the British visa, its price and availability are within the sovereign jurisdiction of the Government of the United Kingdom.


4. The Government of Jamaica has already invested all that it needs to in the CCJ as its final court. That investment is not recoverable in cash. The right can neither be sold nor transferred although it is permanently available when Jamaica is ready to use it.


5. Jamaica has no money to realise from a decision not to use the CCJ. There is no money which could be used for any other purpose. Furthermore, failure to continue to service its loan to the Caribbean Development Bank will result in a default to a major financial institution with all the consequences for access to international resources.


6. The CCJ is significantly insulated from capricious action by any Government using the power of the "purse". The Trust Fund, managed by an Independent Board, chaired by a member of the private sector, is charged to ensure that there are resources to finance the operation of the Court. It is perhaps the only court in the world with that level of financial independence.


7. The judges of the court are insulated against capricious action by a State or States. They are appointed by an independent Judicial Services Commission and once appointed they have tenure to retirement. The president of the court is the only member whose appointment to that position is sanctioned by the heads of Government. The governments can object to a recommendation by the commission but they cannot recommend another person for the office. That is in the sole responsibility of the commission.


8. The independence of the financing and the insulation of the judges were matters rigorously advocated by the Jamaica Bar Association.


9. The CCJ is required to have judges from civil and common law jurisdictions. It cannot therefore be stacked with judges from any one country. At the same time, the commission has the authority to recruit judges from across the Commonwealth and beyond to get the best available.


10. In almost 70 years, more than a dozen dominions and former colonies have withdrawn from appeals to the Privy Council. These countries include India (1947), Canada (1949), Sri Lanka (1984), Malaysia (1984), Australia (1986), Singapore (1994), Gambia (1997), Hong Kong (1997) and New Zealand. In the Caribbean, Guyana, Barbados, and Belize have withdrawn from the Privy Council. Remarkably, none of these countries has subjected the decision to a referendum or national vote. In several cases, including Canada and Australia, the Privy Council on more than one occasion struck down constitutional amendments to abolish it. In all cases the Parliament simply continued to refine the legislation until it was accepted. The refusal of each country to subject the authority of its Parliament to a referendum or other process has been a tremendous asset to other countries. Jamaica would be the first of the former colonies to subject the determination of its Parliament to another process. This will not only affect Jamaica, but will create a difficult precedent the countries in the line. Many of these countries are very small and take leads from Jamaica.


11. The objections to the CCJ as Jamaica's final court include the limited experience of the court, the cost to Jamaica's taxpayers, and the possibility of political influence and bias. Each of these points would hold with much greater weight to a purely Jamaican final court. To hold those objections is to sentence Jamaicans permanently to the Privy Council and to pray that succeeding government of the United Kingdom continue to be benevolent.


12. The number of appeals from Jamaica and the Caribbean to the Privy Council has been falling steadily. Given the increase in population, business activities and serious crimes it might be important to try and determine the reasons.


Consideration of the above should allow intellect and conscience to guide decision.




Byron W Blake is former assistant secretary general, Caricom. Send comments to the Observer or to ambassadorblake@gmail.com.


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