THE idea and eventuation of the Caribbean Court of Justice (CCJ), which culminated in its inauguration in 2005, is certainly not a “hurry come up” set of concepts or actions. Even so, it is reasonable for us to foster misgivings about new things or ideas, especially as they remain untested. That notwithstanding, from as far back as March 1901, as featured in a Gleaner editorial of that month, concerns abounded about the feasibility of referring appeal cases to the Judicial Committee of the Privy Council (JCPC). Then in 1970, paradoxically or not, it was our delegation to the Sixth Meeting of the Heads of Government Conference of the Commonwealth Caribbean Countries — the Jamaica Labour Party was in power — that tabled a proposal for the termination of appeals to the JCPC and for the establishment of a regional court of appeal.

Given this long period of gestation, lingering suspicions, rumours, and myths about the CCJ — though understandable to an extent — remain befuddling. One would have expected that, by now, Caribbean governments and people would have coalesced around a judicial mechanism that has the potential to bring justice closer and cheaper to those who seek redress. Instead, deliberations have been long, slow and fierce. It was not until 2001 that Caricom states signed off on the final agreement to establish the CCJ with two jurisdictional arms: (1) an appellate jurisdiction as the final court of appeal and, (2) an original jurisdiction in respect to the interpretation and application of the Revised Treaty of Chaguaramas. Jamaica currently subscribes to the original jurisdiction.

Although a great many Jamaicans believe that an orderly, efficient and transparent court system is not only vital to our democratic society, but is also essential in settling disputes, serious qualms remain about the proposed appellate jurisdiction of CCJ. As it is with Trinidad and Tobago, disagreements abound over the appropriate procedures to make the CCJ our final appellate jurisdiction. On the one hand, the People’s National Party believes all it requires is for a two-thirds majority of both Houses of Parliament to approve a constitutional amendment such that the CCJ can become entrenched. And, on the other hand, the Jamaica Labour Party believes that the matter is of such gravity that nothing short of a referendum is acceptable.

For the life of me, I do not see the need for all this fuss. If the CCJ is that important to the process of justice, then both parties cannot continue to hold “hard-ends”. They cannot stick to their positional and principled approach yet continue to pretend as though they are acting in Jamaica’s best interest. The conundrum for the Government is that, while it enjoys an impressive majority in the Lower House, it has no such luxury in the Upper House, unless an Opposition member crosses the floor. I guarantee you, it is this stalemate, more than anything else, that is breeding some of the cynicism toward the CCJ. And the longer it takes to reach a reasonable compromise, through bipartisanship, the less likely it will be that the CCJ will replace the JCPC as our final appellate court. It’s unfortunate that we have politicised the CCJ issue and have turned it into such a prolific well of unnecessary polemics. We now have a situation where Her Majesty’s Opposition is embroiled in court actions emanating from parliamentary sleight of hand aimed at preventing its passage in the Upper House of Parliament.

Jamaica has already contributed US$27 million of the US$100 million it will take to operate the CCJ. It was a foolish misprioritisation and misallocation of scarce resources at the time, given that our local court infrastructure was — still is — woefully antiquated, overburdened, backed up, and technologically deprived. Nevertheless, with the investment out of the way, and with the CCJ up and running, there is an opportunity for Jamaica to focus on rehabilitating its existing domestic justice stock with a view to building new systems. As you already know, attracting top jurists and building an efficient appeal court with the requisite supporting libraries and technologies to enhance research capabilities are not cheap. I guess “everybody wants to go to heaven, but no one wants to die”. If we can benefit from the economies of scale in talent procurement and facilities management, then we can rededicate resources toward cultivating a bigger pool of legal resources to replace retiring justices and crumbling justice facilities. Attracting top legal talent is expensive. Law Lords of the JCPC receive an annual salary of £211,000 ($36.93 million).

Furthermore, the cost of accessing the JCPC is not cheap either. “Cases involving disputes worth less than £100,000, the main court fees payable for those appealing a decision from Jamaica would total £650 (£150 to lodge application for permission to appeal; £100 to file notice to proceed; £400 to file main appeal papers). The fees would be greater for high value commercial disputes.” Converted to Jamaican dollars, this is a tidy sum of $116,000, plus lawyer’s hourly billable rate and out-of-pocket expenses. It is interesting, however, that while we engage in political pussyfooting, and although “the JCPC does not lobby

or encourage sovereign independent countries to join or leave its jurisdiction”, Lord Neuberger (president of the UK Supreme Court) made a useful observation during an address on the Isle of Man in October 2013. He remarked quite candidly: “…we are very happy to hear appeals from any jurisdiction which choses to use our services…if a country decides that it no longer wishes to use the JCPC, I accept, of course, that that is entirely a matter for that country…” One may infer as one wishes, but it is obvious that there would be “no love lost” between the JCPC and Jamaica were the country to move away from the Privy Council. Suspicions notwithstanding, are we going to wait until they say “ta-ta”?

Excursus aside, back to the issues of suspicions about the CCJ: Much of this suspicion centres on a particular hesitation to accept that probity resides not only in people who are far from our region, experiences, socialisation and culture. For, while I understand some of the lingering doubts surrounding the CCJ, such as financial sustainability, I find it quite odd that some people are anchoring their suspicions on the belief that legal luminaries of Caribbean descent are incapable of dispensing good verdicts. This argument is specious. There is simply no validity in, nor purpose for advancing this wacky theory. There is neither logical foundation nor rationalisation in arguing that, by virtue of the fact that we share common heritage, political experiences, socio-cultural similarities, CCJ justices would be automatically more susceptible to political interference and, as such, would also be more corruptible, incompetent, manipulatable, less fair-minded, and intellectually incurious than their European or Commonwealth counterparts. Moreover, corruptibility, manipulabilty, underhandedness, cronyism, and incompetence are not culturally, geographically, regionally or ethnically specific. Law Lords of the JCPC have no greater personal inoculation or insulation against corruption than would any judge of the CCJ or the US Supreme Court.

Yet, there is nothing inherently bizarre about wanting assurances from our Government that, beyond hubris, the CCJ will uphold high judicial standards. Nonetheless, it remains funny as hell to me that some Jamaicans who crave for a “touchstone” of judicial excellence and transparency in the CCJ are also unwilling and apprehensive about dipping their feet in the water to test its temperature. They are unwilling to do so, despite seeing the CCJ at work in the landmark case of Shanique Myrie v The State of Barbados. For, although one landmark case “does not an impenetrable reputation make”, this ruling confirms that the CCJ’s panel of legal luminaries are comparable intellectually and otherwise to any such panel of justices, whether they sit on the JCPC or on the bench of the US Supreme Court.

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