Sun | Dec 4, 2016

CCJ can still be manipulated

Published:Sunday | December 14, 2014 | 12:00 AM

Perhaps the most dangerous reason advanced to support the Caribbean Court of Justice (CCJ) is that an indigenous court is needed to "reflect the moral, social and economic imperatives of its people".

There are universal values that our courts respect as the foundations of law and order, but there are other values a political directorate can fashion to its own suit, proclaiming them to be law in the 'public interest', or 'public order', or for 'public safety', as the case may be.

It is this loose framework of the value system that can be manipulated into law to provide legislative support in the name of what is proposed as good by whatever interpretation to protect what is invoked as sovereignty by whatever definition. It is nothing more than a Machiavellian opening for the means to be justified by the end.

Our system of jurisprudence is based on the rule of law. The Charter of Fundamental Rights and Freedoms enshrined in our Constitution guarantees the right to a fair hearing within a reasonable time by an independent and impartial tribunal established by law. Our courts interpret the law by applying established legal principles and their judgments are arrived at after hearing the evidence presented in court, not by external circumstances flavoured by political will and spiced by emotional values.

This is the system we now enjoy in our own courts and where our courts may be otherwise influenced or interfered with, there has always been the comfort of appeal to the Privy Council. No mere majority of politicians in Parliament must be allowed the right to interfere with this system of jurisprudence without the specific consent of the people obtained in a free and fair referendum.

The highest form of justice is most assured when the judge presiding over a matter before the court is insulated from political pressure and influence. This is so with the Privy Council, but the CCJ, as drafted for approval, can be dissolved by a majority of a single vote in each House of Parliament and a referendum just as it can be established by the same single vote and referendum. Judges also face the same test. Omission of this rigorous process leaves the CCJ vulnerable and open to the demands of political fortunes.

It is contended that the cost of the CCJ is cheaper for litigants, although it will be costly to governments that sponsor its upkeep.

The higher cost by the Privy Council to appellants, as contended, is misleading. While it is true that travel costs in the Caribbean to the CCJ would be less than to England where the Privy Council presides, most appeals to the Privy Council involve criminal charges and are defended at no cost, or at greatly reduced cost, courtesy of the conscientious English Bar. Indeed, it is critical to note that the cost factor no longer has any bearing in the Privy Council argument, as it has been revealed that the Privy Council has signified, by letter to the last government, that it would come to Jamaica to preside at a minimal cost of board and lodging for the judges. This dispels the argument professed by the Government as its most potent point.

COSTLY EXERCISE

The cost factor that is more relevant is the operational expense of the CCJ. The Privy Council provides its services free of cost to participating governments. The CCJ is a costly exercise. To overcome this, US$100 million was raised by the Caribbean Development Bank for the CARICOM participating group to be vested in a trust from which the investment interest yielded would operate the court.

The question is asked, why then enter into substantial additional expenditure on a new judicial system for which an excellent system is already in existence in the Privy Council and now can be made available at little or no cost?

In the original model of the CCJ, as discussed in 1988, there was no provision to insulate the appointment of judges from political influence. This was the original objection voiced by me at that time. Other voices were added and, over time, new proposals have been incorporated by which seemingly non-political procedures have been introduced for selecting members of the Regional and Judicial Services Commission which will, among other things, regulate the selection of judges for the CCJ. This will go a long way, if not all the way.

But a problem still remains. The chief justice, who would not be fully insulated from political leaders, would hold sway over the members of the commission for the appointment of judges. I have been too long in the top runnings of the political order - 43 years - not to know how these things work, and I have had to watch the political agenda being played out in schemes like these which, from the outside, seem so wonderfully free of the stain of politics, but through just one soft area allows damage to be done.

The objection to political connections in the administration of justice requires no need for justification. Despite all the insulation of the appointment of judges being built into the system, the spectre of a political shadow can still haunt the court.

The commonly expressed disagreement of the Government of Jamaica with the handling by the Privy Council regarding appeals against convictions on charges of capital murder, which provide for the penalty of capital punishment by hanging, have sent a strong signal of dissatisfaction by Government and a desire for a different court that will satisfy the political will of the Government for prompt hangings.

To bolster the argument of a defaulting Privy Council, reasoning is advanced that the Privy Council is against hanging, and this position is contrary to public preference in Jamaica. Hence, the need for a new court that will be more compliant with political will, the CCJ.

FOOLING NO ONE

This is deliberately misleading. The Government is fully aware that the Privy Council has upheld convictions on hanging on many occasions. What the Privy Council requires is that all courses of appeal to other bodies should first be exhausted before the Privy Council hearing of the appeal.

Fully exhausting the various bodies that hear appeals can take several years, during which the convicted prisoner could complete the five-year limit set by the Privy Council, as in the Pratt and Morgan case, for any convicted person to spend on death row. As a result, some sentences of capital punishment handed down by the court in Jamaica have not been fulfilled by hanging, but traversed to life imprisonment.

Having regard to the fact that because of lack of staff and equipment, some two years of the overall period of the appeal are generally required to complete the time-consuming process of preparation of the notes of trial, Government cannot properly justify its stand against the Privy Council and could be using failure to effectively implement the popular call for hanging without exhaustive trial to bolster its case to remove the Privy Council as Jamaica's final court of appeal.

The credibility of the campaign by Government to remove the Privy Council is further weakened by the loaded statement and political muscle flexing of former Prime Minister P.J. Patterson, when he asserted that he would "not allow any group anywhere, under the guise of judicial (hearings), making ... policy decisions on social matters that are the prerogative of Jamaica as a sovereign and independent country". There you have the clear intent to abort legal reasoning in the name of sovereignty.

This real or perceived political signal of interference is in keeping with the fundamental fear that it could be manifest reality.

Jamaicans have every reason to expect that the justice system can still be manipulated by men who put politics first. We must never forget the infamous gun court that was established by manipulation of the justice system by the Manley government in 1976 using magistrates, without security of tenure, to try gun crimes that should properly be heard by judges whose tenures of office were constitutionally secure and beyond abrogation. This perversion of justice has happened already. Based on the Patterson warning, it could happen again.

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.