Fri | Sep 22, 2017

Nationalist Politicking Interferes with Justice

Published:Thursday | May 21, 2015 | 5:00 AMJaevion Nelson

It is disappointing that replacing the Privy Council with the 12-member Caribbean Court of Justice (CCJ) - established in 2003 under the Revised Treaty of Chaguaramas - continues to be met with much opposition because some Jamaicans believe, as Patrick Robinson summarised, "we are not good enough and cannot be depended on to be just and fair and deliver justice in the way that an English court can".

It is time to strengthen regional alliances and relinquish ties with the Privy Council, established by an act of the UK Parliament, which can at any time - even today - repeal that act and leave Jamaica without a final appellate body (Robinson).

Thankfully, the bills needed to make the CCJJamaica's final appellate court were passed in the Lower House of Parliament. However, Opposition Leader Andrew Holness quipped that we are chasing "after a fleeting and elusive dream called integration" and registered his concern that this "can fundamentally change the legal and political foundations and definition of our society and nation".

NOT SURPRISED

I would be lying if I said I was terribly surprised by his sentiments. I knew all along that this had more to do with an age-old opposition to regional integration. One sincerely hopes that next week, two-thirds of our senators will vote yes to acceding to the CCJ. Importantly, we must all understand that, like the Privy Council, the CCJ will not threaten our "sovereignty or alter the political definition of the Jamaican state".

I believe in the CCJ. As Karl Samuda said, "We have to come to grips with the realisation that as a people in the region, we must be self-determined in terms of establishing an appellate court that will govern the affairs of the respective territories" (Jamaica Observer, January 9, 2012). This is the position of the vast majority of people I know and interact with in various fora and media, even some who are Labourites.

Holness said, "The people spoke on this matter 54 years ago and decided against sharing our sovereignty in any federal arrangement" - a decision he "remain[s] faithful to". Truthfully, it was "a covert agenda [against] integration" that caused Jamaicans to vote against Federation in the 1961 referendum. It wasn't necessarily that people didn't believe in Caribbean unity; it was the fact that they were (mis?)led by Bustamante to vote "Jamaica yes, Federation no."

I won't pretend some of the concerns about the operations of the court aren't valid. The 2012 Caribbean Human Development Report details a number of challenges with our justice systems across the region. Notwithstanding, I don't believe they are so insurmountable that we must delay the CCJ becoming our final appellate court.

Andrew N. Maharajh (2014), in a comparative study of the CCJ and Privy Council in the Cornell International Law Journal, outlines some key differences:

1 The Privy Council is, in large part, only accessible to the wealthy and "certain inmates on death row who are able to secure pro bono legal service from British lawyers";

2 Filing an appeal with the Privy Council is at least five times greater in cost than filing an appeal with the CCJ. Estimates suggest that the average cost after purchasing plane tickets, visa fees, accommodation, and securing a UK barrister is US$65,000;

3 The CCJ is "willing to grant appeals in forma pauperism, waiving all filing costs when it deems them too burdensome on an individual litigant", which the PC does "on a more limited basis";

4 The CCJ "is itinerant, [so] it can travel to signatory states to hear cases, lessening the need for litigants to travel". The court also has an "impressive" e-filing system and also facilitates "procedures like depositions and testimony" through teleconferencing.

Unlike the opposition leader, I believe this is a priority issue regardless of the fact that our economy is burdened. We are already one of the largest contributors to the CCJ, despite low GDP and high debt. It is important that we understand that "ending poverty [and] controlling the scourge of crime" are also affected by our inability to access justice.

- Jaevion Nelson is a youth development, HIV and human-rights advocate. Email feedback to columns@gleanerjm.com and jaevion@gmail.com.