BY any measure, Prime Minister P J Patterson staked a fair bit of his political, and personal, prestige on the establishment of the proposed Caribbean Court of Justice.

Now that the Privy Council has ruled as unconstitutional the process, Patterson vigorously championed for making the CCJ Jamaica’s court of last resort, the early assessment is mixed on what, if any, damage has been sustained by the Jamaican leader and his ruling People’s National Party (PNP).

For Lambert Brown, a former Marxist, who is vice-president of the University and Allied Workers Union (UAWU), there is little doubt that Patterson has suffered a bloodied nose, which could result in Patterson adjusting his timetable to retire as prime minister and step down as president of the PNP.

“It could delay his departure,” Brown, who now supports the Jamaica Labour Party (JLP), told the Sunday Observer.

“If Patterson had planned to step down before the next PNP conference (in mid-September) that, I think, would be delayed,” Brown added. “In a sense, what I think the Privy Council has said to Patterson is: ‘Fagit it. Fagit you plans’.”

Brown’s reference is to Patterson’s now much-satirised comment when he lapsed into Jamaican lingo during a parliamentary debate to tell opponents to forget their demands for a referendum for the establishment of the CCJ.

But that is precisely what the prime minister, based on the Privy Council’s ruling, is faced with, unless he can persuade the JLP to vote with the government to provide a two-thirds majority so as to amend the constitution and entrench the court.

Either strategy would require deft, and complicated parliamentary manoeuvers and substantial amounts of political horse-trading if the Opposition is to be on board.

“The problem is that any new bills will take some time to make it through Parliament,” Brown said – at least three months between being laid at the first reading.

The CCJ has long been a controversial issue that has occupied most of the countries of the Commonwealth Caribbean for the better part of three decades.

In the 1970s, it started as a process to fully repatriate the sovereignty of Caribbean countries by having a final court in the region, rather than having cases being sent to London to be adjudicated on by British judges. The Caribbean states were among a handful of Commonwealth countries that maintained the Privy Council as their final court, particularly with last year’s withdrawal of New Zealand.

But the region’s on-and-off debate on the abolition of the Privy Council began to gather new steam in the late 1990s and into the new decade after a series of rulings, by the British judges, which Caribbean leaders said were heading towards abolishing capital punishment.

In fact, Caribbean governments have gone so far as to accuse the Privy Council of engaging in writing, rather than interpreting, the law. On the other hand, lawyers and rights groups argued that regional governments were hastening to withdraw from the Privy Council so as to establish a “hanging court”.

But while the primary focus on the CCJ has been on its criminal and civil jurisdiction, the court is to have another critical role. It will have original jurisdiction on matters relating to the interpretation of the Revised Treaty of Chaguaramas, the instrument transforming the Caribbean Community into a single market and economy – a seamless regional economic space.

Initially, many of the critics of the proposed court questioned the quality and capacity of Caribbean judges and their ability to produce a standard of jurisprudence supposedly achieved by the Privy Council.

But that line of argument receded and the concerns focused primarily on the financing of the court and its insulation from political interference and, finally, in the case of Jamaica, the mode by which the court should be established.

The Patterson government had insisted that under Section 110 of the Jamaican constitution, the right to abolish appeals to the Privy Council could be accomplished by a vote of simple majority in Parliament.

Opponents at first disagreed.

But while they eventually conceded that it required special constitutional action to end final appeals to the Privy Council, they insisted that the same procedure could not be used to introduce a new court with superior jurisdiction to the Court of Appeal of Jamaica, which is entrenched in the constitution.

In other words, where Patterson had promised to establish the CCJ and then seek, at a later date, to constitutionally entrench it, the counter argument was that its entrenchment had to be done at the same time.

So, the government might have abolished the Privy Council and left it at that and would have been in the constitutional right. But based on the ruling, it would be in the constitutional wrong to install a new court, which did not immediately have the same constitutional insulation as the domestic appeal court.

“The Board has no difficulty in accepting, and does not doubt, that the CCJ Agreement represents a serious and conscientious endeavour to create a new regional court of high quality and complete independence, enjoying all the advantages which a regional court could hope to enjoy,” the Privy Council said in its ruling.

It agreed with the argument of Dr Lloyd Barnett, representing the Independent Jamaica Council for Human Rights (IJCHR), that the agreement between Caribbean countries establishing the court could be amended and that such amendment could take effect in the domestic law of Jamaica by a parliamentary vote.

Said the law lords: “The risk that the governments of the contracting states might amend the CCJ Agreement so as to weaken its independence is, it may be hoped, fanciful. But an important function of a constitution is to give protection against governmental misbehaviour, and the three Acts (establishing the court in Jamaica) give rise to a risk which did not exist in the same way before.

The Board is driven to conclude that the three Acts, taken together, do have the effect of undermining the protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution. From this, it follows that the procedure appropriate for amendment of an entrenched provision should have been followed.”

In dealing with the fact that the Privy Council itself was not entrenched in the Jamaican constitution, the UK judges said: “. This Board, which, although enjoying no entrenched protection in the Constitution, was known to be wholly immune from executive or parliamentary pressure in any jurisdiction from which appeals lay and whose members were all but irremovable.

“The three Acts do not, singly or cumulatively, weaken the constitutional protection enjoyed by the higher judiciary of Jamaica. The question is whether. a power to review the decisions of the higher courts of Jamaica may properly be entrusted, without adopting the procedure mandated by the Constitution for the amendment of entrenched provisions, to a new court which, whatever its other merits, does not enjoy the protection accorded by the Constitution to the higher judiciary of Jamaica.”

Patterson, whose Cabinet will discuss the ruling tomorrow, has been attempting to highlight the Privy Council’s statements about the continued protection of the Jamaican courts and the independence that was to be afforded the CCJ.

But Brown insists that arrogance caused the government not to recognise bad legal advice, leaving Patterson with embarrassment and a political dilemma.

“I think the arrogance of the PNP blinded it to the weakness in the advice that they should proceed in respect of the status of the three bills that were passed,” he said.

But Shalmon Scott, a former politician, who is now a political analyst, rejects suggestions that Patterson has been harmed by the ruling.

“I don’t think that Mr Patterson is any loser to have pushed for the establishment of the CCJ,” he said. “While there is a glitch as far as procedural arguments is concerned, the usefulness of such a court towards regional development is impatient of debate.”

Charlene Sharpe-Pryce, the head of the social sciences department at Northern Caribbean University, however, agrees with Brown that Patterson had emerged the worse for wear from the legal skirmish.

“If we are going to narrow it down to the political parties (and not a judicial rights or regional issue), then I am not necessarily seeing it as a blow, per se, to the People’s National Party en bloc,” Sharpe-Pryce, said. “(It is) really a blow to the prime minister since it is one of the legacies that he wanted to leave,”

“It is the main thing that he wanted the Jamaican society to remember when he leaves, so it is a blow to his personal agenda,” she added.

At last month’s 66th annual PNP conference, Patterson had included among the list of things to do before leaving office, an examination of “the options” available after the Privy Council ruled on the CCJ matter.

Political pundits say that how much of a set-back the ruling turns out to be for Patterson and his party could turn on how the issue is parlayed by the JLP and its leader-in-waiting, Bruce Golding.

It was the party’s former leader, Edward Seaga, who got the challenge going. Last year, while the bills to abolish appeals to the privy council and to establish the CCJ were still in Parliament, he took the matter to the local Supreme Court. Rights groups, including Barnett’s IJCHR, joined the action and the appeals, when the Supreme Court held that the legal challenge was premature.

“It’s an important victory,” said Golding. “But it’s not just a victory for the JLP, it’s a victory for the people of Jamaica. To the extent that we provided leadership in that, then we expect that that will have some impact on people’s assessment of the options that are open to them.”

Northern Caribbean University’s Sharpe-Pryce, however, cautioned that in assessing political advantage, the issue had to be viewed in the correct context, including its ability to generate interest at the grassroots level.

For while the CCJ has been a controversial topic within political and academic circles, the issue has hardly captured the imagination of the man on the street.

“I don’t know to what extent many of the grassroots persons are following the debate on the CCJ,” she said. “I don’t know if many of them even understand the implications of the Privy Council ruling.”

Neither does Sharpe-Pryce believe that Golding was set to get a lift in his personal stocks from the matter, given the fact that it was primarily a Seaga effort.

“Yes, it was a JLP-led initiative, but it was a JLP-led initiative pushed by Mr Seaga,” Sharpe-Pryce said. “We had not really heard a whole lot coming out, since Bruce Golding has had the chairmanship (of the JLP), on this CCJ issue. His concern is really the Caribbean Single Market and Economy and the political union, as opposed to the CCJ.”

Golding stressed at the weekend that this was a party, rather than personal, issue and any benefit was to the JLP.

“The party took a position,” he said. “I was part of that position. Mr Seaga led it and we continue to pursue the same stand that we took prior to the decision.”

Even now, as the JLP contemplates its next move in the wake of the ruling, Golding said, “I am in constant consultation with him (Seaga)”.

The JLP chairman also attempted to play down apparent differences between Seaga, who stepped down last month as the party’s leader, and his JLP colleagues, on what could be a workable solution to the impasse between the government and the Opposition.

Seaga had several months ago floated the idea of having the CCJ as a sort of intermediate court, operating alongside the Privy Council for 10 years, after which people would be asked, in a referendum, whether they want it to remain as the island’s final court. He repeated that proposal last week.

But said Golding, even as he sought to press home the point that there was no fundamental disagreement in Seaga’s and the party’s position: “Even if we are to set up an intermediate court as we had proposed, based on the ruling of the Privy Council that intermediate court, if it is to have validity, would have to be entrenched.

The process of entrenchment would require Opposition support and, possibly, a referendum. We would have to look at that to determine whether you go to a referendum for an intermediate court and, once we are satisfied that the intermediate court can become the final court, to go for another referendum to set it up as the final court.”

Patterson’s PNP has been wary of the idea of referenda since the party lost the one that pulled Jamaica out of the West Indies Federation in 1962, which precipitated the collapse of the federation.

The concern would be that a referendum would not be on the specific issue for which the plebiscite was called, but a political assessment of the government. The issue, therefore, is whether it could, on this occasion, find common ground with the JLP.

“The problem the PNP faces is how to put shame-face aside and face up to the errors and to find a way to ensure that, for Jamaica, both sides come to some consensus,” Brown said.

Professor Rex Nettleford, the retired vice-chancellor of the University of the West Indies (UWI), would not be drawn into a discussion about winners or losers or Patterson’s time-frame for leaving.

“All I can say is that I am happy that both sides have not rushed to either despair or misguided optimism,” said Nettleford. “At least there is the seeming willingness, and will, to meet and find a proper solution that is appropriate to the destiny and future of this country, and the region as a whole.”