Monday, September 01, 2014
Time to decide on CCJ after more than 40 years of debateKEN CHAPLIN
AFTER more than 40 years of debate in the country as to whether the Judicial Committee of the Privy Council, which is based in England, should be replaced by a Caribbean Court of Justice, the two major political parties, the governing People's National Party and the Opposition Jamaica Labour Party seem to be playing political games.
As I understand the issues, the Constitution must be amended to accommodate the transition from the Privy Council to the CCJ as the final court of appeal.
A Bill has to be brought before Parliament by the government to abolish appeals to the Privy Council and entrench the CCJ into the Constitution as the final court of appeal. The Bill must be approved by at least two-thirds of the majority of members in both the House of Representatives and the Senate. The government is firm on its position to join the CCJ. If the CCJ is established and begins to sit, there may be cases which will still be pending before the Privy Council. The litigants in those cases will be able to continue their litigation until the cases have been heard.
On the other hand the JLP wants a referendum to determine the issue. If the vote in the referendum is in favour of the CCJ, the same legislative process has to be followed: a Bill before Parliament seeking amendment of the Constitution for the entrenchment of the CCJ and so on. If the referendum is against the transition that is where the trouble starts. The JLP could very well demand the resignation of the government and the holding of general elections, arguing that the government was defeated on an issue of fundamental importance affecting the lives of the people.
It may be recalled that in 1961 there was the fundamental issue as to whether Jamaica should join the West Indian Federation. The PNP administration led by Premier Norman Washington Manley was in favour of Jamaica joining the Federation. I remember riding with Manley on his pro-federation truck in a parade. The JLP was against Jamaica joining. Manley, a leader with the highest democratic ideals and principles, called a referendum to decide whether Jamaica should join. He lost the referendum and his government resigned and called a general election, which he lost. It is still debatable whether Manley should have called a general election, but that is mere speculation.
The JLP won and Alexander Bustamante led the party to victory in the elections, formed a new government and took Jamaica into Independence in 1962. The PNP went down two nil: losing both the referendum and the general election. Is the PNP making sure that history does not repeat itself?
What many people to whom I have spoken would like to see is a non-partisan campaign on the merits of the CCJ as the final appellate court. They would like to know whether it can offer the high standard of jurisprudence as the Privy Council. The Privy Council has served justice well in Jamaica and saved a few from the gallows over the years. There is a large body of public opinion that does not want to see it go. There have been many cases where the Appeal Court in Jamaica has misstepped and the Privy Council saved the day and life of the appellants.
A classic example was the bank murder in St Ann many years ago. The man was charged with the murder, was tried by the Circuit Court, found guilty and sentenced to death. His appeal to the local Court of Appeal was dismissed and he took his case to the Privy Council and won. A vital piece of evidence - a video tape of the robbery - was hidden by the prosecution but the Privy Council called for the tape. No one in the tape resembled the accused and the appeal was allowed. The accused had spent many years on death row.
The CCJ has one big advantage for Jamaicans. The cost to litigants would be reduced considerably by travelling to Trinidad, the present location of the CCJ, instead of going to the Privy Council which is located in England. I gather that there are plans for the CCJ to sit in each of the member states occasionally, which would cut the cost even more.
Leaving the Privy Council may open the way for the death penalty to be carried out in Jamaica after the accused has exhausted all the processes of appeal. Many people in Jamaica think the carrying out of the death penalty will make a major contribution to the effort to reduce violent crime. The Privy Council is fiercely against the death penalty and it has said so repeatedly. At present there is no chance of the death penalty being carried out so long as Jamaica is connected to the Privy Council.
One salient point is that the Privy Council would not mind getting rid of Jamaica. One of its highest officials has said that cases from Jamaica are making it difficult for the body to handle appeals by litigants in the United Kingdom expeditiously. This means that it is time for Jamaica to go.
The argument has been adduced that Caribbean judges lack the wisdom of judges of the Privy Council, but wisdom does not reside only in London. Judges can be found in the Caribbean who have the character, learning, integrity and impartiality and are as good as judges in any part of the world. Questions have been raised about the resilience of Caribbean judges to resist political pressure. I think over the years Caribbean judges have shown that they can.
So let Jamaica decide one way or the other whether we want to be part of the CCJ. There can be no more delay.
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