Making a mountain of the CCJ molehill
Sooner or later, Jamaica will stop using the Judicial Committee of the Privy Council as its final court of appeal. It's just a matter of when and how.
The positions of our two political parties are well-known. The Government wants to do away with appeals to the Privy Council immediately, and it wants to substitute the Caribbean Court of Justice (CCJ). The Opposition Labour Party says we should first deal with more pressing matters and later on create Jamaica's own final court of appeal. As to the how, the Government is citing its legal authority to amend the law with a two-thirds vote in both houses of Parliament, whereas the JLP wants the matter referred to referendum.
I suppose it's a testament to the endless creativity of our political elites that they can thus agree on all the fundamental issues to do with a case, but still manage to produce a heated argument. Some of this is just history. Going back to the days of Norman Manley and Alexander Bustamante, the People's National Party (PNP) has always been open to regionalist initiatives, whereas the Jamaica Labour Party (JLP) tends to favour a go-it-alone approach. Thus, they may be rehashing some of the arguments of the Independence years.
niggling about details
But if back then those arguments were existential in nature, reflecting questions of identity and allegiance, these seem now to be niggling about details - details which, with a bit of political will, seem within the reach of compromise. Prime Minister Portia Simpson Miller dismisses opposition concerns about the cost of the CCJ by pointing out it is funded by an endowment that is already established. But it seems reasonable to assume that making the CCJ our final court of appeal will augment its workload, with possible implications for its budget.
On the other hand, the JLP might be paying too little heed to the obvious economies of scale in creating one regional court, rather than creating a series of national courts that are bound to have high fixed costs. If small countries as rich as Brunei and Mauritius can see the wisdom of still using the Privy Council as its final court of appeal, we may want to reconsider the value of creating the full panoply of state institutions for our small island when we have partners willing to share the burden of expenditure.
When it comes to procedure, the Government is on solid legal ground when it maintains that Parliament has the full power to substitute the CCJ for the Privy Council as the final court of appeal. Indeed, this is how other Commonwealth countries, like Canada, proceeded when they made their own Supreme Courts their final courts of appeal. But need a referendum be such a dangerous thing?
The Government demurs on its cost, but there must be inexpensive ways to conduct a referendum, such as appending it to the ballot for a regular election (which will happen soon anyhow, though detractors will claim this would further politicise and tribalise the issue). If the JLP feels that strongly about this matter, and since its members of parliament speak for a goodly portion of the country's electorate, it may be a matter that can be worked out.
Rex Nettleford used to say that Jamaicans had a gift for finding the problem to any solution. This strikes me as one of those cases.
Perhaps I simplify matters, but as a layman, I can't help but think that this is one of those cases when we should all just lock our politicians in an airless room for a day or two and tell them to come back to us when they have sorted it out. Surely, the bombastic language about sovereignty and independence can wait for an occasion when such a division of opinion exists.
Because, hey, everyone - including the judges in London - agrees it's time for Jamaicans to stop travelling to Britain for justice. When a solution that pleases everyone is that close at hand, certainly we should be singing kumbaya rather than deriding one another.
- John Rapley lectures at the Centre of Development Studies at the University of Cambridge. Email feedback to firstname.lastname@example.org.