Unusual Friday inthe Senate
IN an unusual day Friday, the Senate ended a marathon session debating a resolution to support Jamaica’s ratification of the pact to establish the controversial Caribbean Court of Justice (CCJ), but saw two senators break with tradition in not toeing the party line.
The Senate also saw a rare ruling, from the president, Syringa Marshall-Burnett, that a member, Dorothy Lightbourne of the opposition Jamaica Labour Party, was in breach of Senate standing order when she suggested that judges made decisions in favour of the Government, in order to get promoted.
When Lightbourne remained unrepentant, Attorney-General and Justice Minister A J Nicholson vowed to report her to the General Legal Council of the Jamaica Bar Association.
In the end, the senators voted 11-6 in favour of the resolution supporting ratification of the CCJ agreement. But the records will show that JLP senator Bruce Golding abstained in the vote, indicating he could not vote ‘for’, but was not sufficiently ‘against’.
People’s National Party senator, Trevor Munroe, voted with the Government side for the resolution, but not until he had made it clear he disagreed with its position that there would be no referendum to decide whether Jamaica should leave the United Kingdom Privy Council in favour of the CCJ.
In his presentation on Thursday, Golding had conceded that the current agreement “represents a significant improvement over that which was originally tabled, and reflects the important role the Opposition has played in insisting that judges of the CCJ be insulated from political influence”.
He added, however, that it was the Government’s “arrogant attitude in pushing for ratification of the agreement that was most to blame for the lack of consensus”.
For his part, Munroe won the applause of the other side of the lower house when he disagreed strongly with the Government for not following a course of “best practice” by putting the question of de-linking from the Privy Council to “an indicative referendum”.
But he supported the motion on the following grounds:
* The Government has now committed to a referendum to entrench the CCJ agreement and acknowledges the need for all contracting parties to do likewise.
* The agreement establishing the CCJ is now in force, even though the Court itself has not yet come into being. It is a fait accompli. Jamaica reduces its ability to shape any amendments to the agreement or to be involved in composing the Regional Judicial and Legal Services Commission (RJLSC) by not being a contracting party and by further delaying our ratification.
* The British have now imposed visa requirements on Jamaicans, which, in theory, could literally block the physical access of a Jamaican and/or his attorney from accessing our highest court — “a repugnant and unacceptable anomaly”.
Regional governments have been discussing the idea of establishing the CCJ that will have jurisdiction in interpreting the treaty governing the Caribbean Single Market and Economy when the region becomes a single trading bloc by December 2004.
But the CCJ has been mired in controversy over its other proposed realm, that of replacing the Privy Council as the final court of appeal for criminal and civil matters for several Caribbean countries.
The proposed court’s critics have raised objections ranging from the quality of jurisprudence in the Caribbean, to the inadequacies of the justice system in the region, to fear that the court will be under-funded and the possibility of political interference.
Earlier in Friday’s proceedings, President Marshall-Burnett informed the Senate that statements made by Opposition senator Dorothy Lightbourne at Thursday’s sitting, had been found to be in breach of a Senate standing order.
Lightbourne was making her contribution to the debate on the CCJ when she stated:
“…The resident magistrates are persons who probably have to keep looking over their shoulder — looking over their shoulder because they are looking for promotion. They want to be promoted to the Supreme Court so they have to give decisions that Government likes…”
Marshall-Burnett ruled that the utterance, recorded in Hansard, was in breach of Senate standing order 35(7) which states that the conduct of judges and those engaged in the operations of the justice system should not be raised in the lower house, save in a substantial motion.
Still fighting, Lightbourne, an attorney-at-law, rejected the president’s request that she withdrew the offending statement, saying that she was misquoted. “I was not casting aspersions on our resident magistrates but on the Government… on how they treat the RMs,” she said.
“I want to pay tribute to our resident magistrates, who work in the most appalling conditions… I was not saying that our resident magistrates give decisions that the Government likes… I was talking against the position in which they are put by the Government and saying they need to be protected so that they can act without fear,” she countered.
Lightbourne’s insistence that she would not withdraw her statement, resulted in Nicholson telling the Senate: “I have no recourse but to refer this matter to the General Legal Council of the Jamaica Bar Association.”
In her general contribution to the debate, in which she argued against the resolution supporting ratification, Lightbourne claimed that the regional court would not have the independence of the Privy Council, and would be unduly influenced by the heads of government of the various countries comprising the court.
“As we have seen, the Privy Council has made decisions which you (the Government) do not like and so there is a rush to get rid of it so that you can have your own court, so that you can appoint your own judges, so that you can have judges that will give you the decisions that you want.”
But on Friday, Senator Munroe challenged her claim, pointing out that “none of the 11 members of the Regional Judicial and Legal Services Commission that appoints judges to the CCJ are directly or exclusively appointed by politicians”.
Munroe said that even in the case of the appointment of the president of the RJLSC, who was appointed by the qualified majority vote of three-quarters of the contracting parties (governments), the politicians had to follow the recommendations of the RJLSC.
In comparing appointments to the CCJ to the appointment of judges under the Jamaican constitution, Munroe noted that the chief justice was appointed on the recommendation of the prime minister, after consultation with the leader of the opposition. “There is absolutely no involvement of any non-political element, yet we don’t call our chief justice a ‘political chief justice’,” Munroe said.
Contributing to the debate, Opposition senator Shirley Williams noted that the Government was making much of the support of the JLP for the CCJ in 1970 and 1988, but declared that times had changed.
“Because of the Government’s economic recklessness, the Jamaican economy today, unlike in 1988, cannot afford the J$1.5-billion portion of the bill that we would be responsible for,” Williams said.
She appeared to ignore figures given Thursday by Senator Delano Franklyn (PNP) that it cost Government $11.2 million as an average annual cost to pursue cases in the Privy Council between 1995 and 2002, and Senator Keste Miller’s estimation that “a modest case (Privy Council) can cost up to £20,000 for a two-day duration”.
Nicholson, in trying to head off concerns about funding of the CCJ, had informed the debate Thursday that the heads of government who had signed the agreement had approached the Caribbean Development Bank (CDB) to raise the sum of US$100 million on the international capital market. This would be administered by that bank or some other body, “away from government control or interference”.
The attorney-general said the proceeds of the trust fund would be employed to defray the current and capital expenditure of the CCJ, and that the money raised by the CDB would be on lent to member states who are party to the agreement.
“In the case of Jamaica,” Nicholson said, “the amount involved would be US$26.8 million, repayable over a 10-year period.”