Sat | Dec 3, 2016

Sovereignty a red herring in pro-CCJ chorus

Published:Sunday | December 7, 2014 | 12:00 AM

The history of the Caribbean Court of Justice (CCJ) has been documented. It was first mooted in 1970. Work proceeded by way of further discussions from time to time at official levels until the proposal resurfaced at the CARICOM Heads of Government meeting in Antigua in 1988.

The discussion at that time was against the background of a relative sense of security in the region. There were no special economic threats; social stability prevailed; the criminal justice system was not under siege.

As prime minister at that time, the Government of Jamaica did not view it with disfavour provided a mechanism could be devised to ensure that judges would be so appointed as to be entirely free of political connections to ensure that their independence would not be in question.

However, times have changed, indeed, drastically so.

The economic climate of the late 1980s no longer prevails. There was certainty and predictably, robust economic growth, relatively stable social conditions in which crime comparatively was not of epidemic proportions, and the justice system worked. Today, each of these conditions has now been reversed.

The justice system, which was not of great concern, is now of prime importance to Jamaicans, who see their future threatened by a suspect system that regularly demonstrates that it is unjust.

The proposal for the establishment of the fledgling Caribbean Court of Justice as the final court of appeal for Jamaica creates an uncertainty that cannot be risked amid all the other fearful uncertainties of the times.

We have had enough adventure in the Federation of the West Indies and in socialism. They both failed and collapsed. Stay with what we know.

If it is the intention of the Government to contend that our original position of cautious and conditional agreement and further evaluation should mean full approval at this time, years later, let me remind that it is the business of a thinking party to rethink its position, according to changing conditions.

I need only remind of the evolution of the Federation of the West Indies, a concept that was endorsed in the beginning by both parties, enthusiastically by one, cautiously by the other. But with the evolution of other ideas and changing conditions over time, the original position was rethought and rejected.

I need further remind that had the original position of the Federation not been reconsidered, the Jamaican Parliament would be sitting here today without real sovereignty, an appendage of some other Parliament elsewhere.

Evaluation

The resolution before Parliament is to seek ratification of the agreement to establish the Caribbean Court of Justice as our final court of appeal for Jamaica, replacing the Judicial Committee of the Privy Council.

The arguments offered propose that the CCJ is necessary in order to:

n Fulfil our political sovereignty by providing for an indigenous institution;

n Allow for a system of jurisprudence that takes into account "the circumstances of our society and the aspirations of our people";

n Make justice more affordable to the people.

This is a partial list which is silent on whether the court would be:

n An improvement of the

present judicial system in Jamaica;

n Independent of political

interference;

n A permanent part of our

judicial system

These six queries define the position of the CCJ and its claim to establishment. Let us review the arguments, one by one.

Sovereignty

To say that we must have an indigenous court to fulfil our sovereignty is faulty reasoning riddled with self-serving

purposes.

What is apparently meant is that the CCJ is to serve the

purpose of achieving a greater Caribbean identity to satisfy a Caribbean citizenry, which does not at this time exist, but is expected to emerge when all the pieces of the plan for regional integration are in place. This is a critical factor in understanding the real purpose and intent of the Government.

What credibility exists to

support an argument of attaining sovereignty by establishment of an indigenous court by any

government which has had to divest into the hands of foreigners much of the indigenous Jamaican financial system, telecommunication network, central production base, the national airports, vital public utilities and other critical underpinnings of national ownership, control and sovereignty? Yet these divestments are essential to provide capital for the run-down Jamaican economy and are, consequently, directed and supported by policy, even though it derogates from sovereignty, because in a crisis, acquisition of capital is a greater good than sovereignty. The

crisis now faced in the circumstances of the global debt (rated as the third worst in the world), a destabilised society and a weak criminal justice system demands that the Privy Council, rather than the CCJ, be treated as the greater good.

Simply to wave the flag of sovereignty will not necessarily arouse us emotionally as it does at a football game or in some other event where we are proud of the performance of a Jamaican team.

The concept of sovereignty is far different today than it was when the Jamaican Constitution was created in 1962. There are new considerations of huge cross-border traffic in money and in trade, of systems of governance that are being tailored to a free market, and market principles that have taken over the globe. These must be viewed on the basis of whether they have insular strength, or have to be compatible with

systems of governance and finance that cover the free-

market world.

Regional court

In respect of sovereignty as a concept, Dr Lloyd Barnett, the most eminent constitutional authority in the country, has this to say:

"Political sovereignty is at first blush emotionally compelling. However, in a world which is increasingly becoming a global village and in which jurisdiction over important areas of national life is more and more conferred on regional and international bodies, this argument is losing much of its force. In any event, the proposed court would not be a Jamaican court, but a regional court on which it is theoretically possible that there would not be a single judge of Jamaican nationality."

It would be wise for those who only more lately have been seeking to champion the cause of sovereignty to remember that Jamaica is a sovereign nation today because it did not doubt our capacity to be independent on our own. We trusted the

people to make the right decision in the referendum of 1961. Do they now contend that the referendum was a wrong decision and that, without consulting the people, we should have continued on a federal path without national sovereignty?

All this tells us that sovereignty is not the real issue. From the reasons offered, we get the strong impression that what we are speaking of here is not so much a matter of national sovereignty but of political

destiny, and what we are playing out is not the strengthening of the sovereignty of Jamaica, but fulfilling the political destiny of an integrated Caribbean region. This destiny is spelled out in the recent report of the West Indian Commission:

"The case for the CARICOM Supreme Court with both a general appellate jurisdiction is substitution for the jurisdiction of the Judicial Committee of the Privy Council and an original regional one in respect of the interpretation and application of the Treaty of Chaguaramas is now overwhelming. Indeed, it is fundamental to the process of integration itself."

We have no quarrel with those who want to go in the direction of completing the integration process by taking it to the

political level, but Jamaica does not wish to pursue this course, and it is for this reason that we differ. By this position, we mean no disrespect to our Caribbean sister states with which we have had a strong record of cooperation at many levels for 30 years. It is not that by our stand we love them less, but that we love Jamaica more!

The Government of Jamaica does not have the credibility to convincingly deny that it is involved in moving undercover in a direction of political integration. The credibility factor is not on the side of Jamaica, especially when it has been admitted that the CCJ is the only institution left to be put in place to take the final step to political integration of the Caribbean states in a failing CARICOM. Everything else is in place and ready to go.

n Edward Seaga is a former prime minister. He is now chancellor of the University of Technology and a distinguished fellow at the UWI. Email feedback to columns@gleanerjm.com and odf@uwimona.edu.jm.