Fri | Dec 9, 2016

CCJ - let the people speak!

Published:Sunday | December 21, 2014 | 12:00 AM
Andrew Holness, leader of the Jamaica Labour Party, has been a major critic of the CCJ, arguing that a referendum should dictate Jamaica's decision on a court of last resort. - Norman Grindley/Chief Photographer

Edward Seaga, Columnist

The fundamental question is whether the Caribbean Court of Justice (CCJ) would offer an improvement to the services provided by the Judicial Committee of the Privy Council. No one can contend that this is the case.

The Privy Council consists of the highest calibre of the British judiciary and other invited heads of judiciaries in the Commonwealth who together comprise a wealth of erudition and experience that is unmatched in our system of justice.

Jamaicans in all walks of life have a deep respect for the quality of justice of the Privy Council, a status which any new court may or may not achieve and, in any event, only over a substantial period of judicial practice.

The reputation of the Privy Council is a linchpin of great importance to agreements between foreign and Jamaican entities. For those foreign entities, which, through unfamiliarity, are not convinced of the reputation of Jamaican courts to provide the quality of justice they expect, recourse to the Privy Council is the comfort that satisfies their concerns about hearing disputes in this jurisdiction. Recourse to the Privy Council provides the glue, without which many substantial agreements would never hold. I shudder to think what the reaction would be on future agreements if contracting parties are told that disputes dealt with would be handled by the CCJ.

There is one further point of great importance to assess. How permanent will the CCJ be? An abolishment of the Privy Council without having a replacement court which is deeply entrenched in the Constitution will result in a Jamaican court becoming our final court of appeal.

It is not intended, so far, by Government that the CCJ should be established by way of deep entrenchment in the Constitution as required by the Privy Council. Deep entrenchment would require political cooperation for the people to decide. The procedure for establishing the CCJ with deep entrenchment shall be by at least two-thirds of the votes in each House of Parliament, and if the bill is rejected twice by the Senate, a referendum with a plurality of at least 60 per cent of the votes by the people. Section 49 (5) of the Constitution sets out this requirement. This is what the Constitution requires and the Privy Council states is the acceptable route.

But the Government does not appear to be pursuing this constitutional course. It appears to be pursuing a procedure to have the CCJ established by a two-thirds majority vote in each House of Parliament. If the CCJ is established in this manner, likewise, it can be dissolved by the same procedure at any time in the future. This is unacceptable. It is fraught with danger and is self-defeating.

JUDGE REMOVAL

The same protection is also set out in the Constitution in Section 100 in the case of the Supreme Court and Section 106 in the case of the Court of Appeal for the removal of judges in so far as the appointment of judges of these courts are concerned, except that the removal of a judge must have the approval of the Privy Council instead of a referendum. Such a procedure would be highly unlikely to succeed in the Senate.

The strength of the highest court and its judges must rest in this impregnable position from all conditions that can unduly influence the court. This can only be ensured by deeply entrenching its position in the Constitution.

The spectre of the highest court in the judicial system existing in a precarious structure in constitutional protection tells us that to go this route is a perverted arrangement designed to fulfil a purpose regardless of the anomaly it generates or the abomination it creates. It will have the status by reality, or perception, of a hybrid species of a true court.

In all these circumstances, the proposed CCJ is being constructed on a platform of splintered timber:

  • Contrary to its proclaimed purpose, it is not an instrument of sovereignty, for it will be attached to no sovereign nation;
  • It may be an instrument to help fulfil destiny in the political integration of the Caribbean, but, from all political sides, we are not going in that direction;
  • It cannot fulfil the "moral, social and economic imperatives of the people" unless it bastardises itself, in which case it is half a court and half something else;
  • Its provision of cheaper justice for litigants is no longer a feature, since the Privy Council has indicated that it will give its services freely in Jamaica if invited, at a cost of only bed and board for the justices and their support assistants;
  • Its independence is compromised by lack of protection from political interference on the threat of easy removal of judges;
  • Its permanence as a judicial body, which permanence is a necessity if justice is to be served, could be dissolved in the future - here today, gone tomorrow;
  • It offers no improvement to judicial system of the Privy Council built around an appellate court with an honoured tradition of justice that cannot be matched by the CCJ.

No real arguments

In brief, there are no real convincing arguments for the establishment of a Caribbean Court of Justice as our final appellate jurisdiction. It will introduce, at this time, greater uncertainty than the great uncertainty which already exists amid an economy that is struggling for control and a society wobbling under dysfunction.

If the Government persists in participating in the CCJ, the people must be consulted. There is no other course than to be guided by the people in a referendum. Let the people speak!

There has been no more sinister attempt to subvert our system of justice and to subjugate the rights of the people than this attempt to unleash on an unsuspecting people a lesser breed of justice, which can be moulded in the shape of a greater political will.

Let us not believe that the people are ignorant of the need for more, not less, justice. The infamous events of this decade tell us that there is no weaker link in the political fabric of our society than the quality of justice.

These are days when every device is used to exploit every loophole that will allow the assumption of even greater political power over the people and abuse them of their rights. We must not allow a freer hand to a government that already fully controls all the centres of political power in the Cabinet, and Parliament, and weaves vast influence over the forces of law and order. Any further extension on their grasp on our lives through a system of dubious justice can allow greater political empowerment to threaten our fundamental rights and freedoms.

We will not accept that after all the epic struggles at the end of the thirties for workers rights, the fifties for independence rights, and the seventies to protect our society from an alien ideology, each a generation apart, that, at this time, the beginning of the first new generation of this century, we should see the doors of the highest form of justice being slammed in our faces.

In 1962, the people of Jamaica did not intend that one set of masters should be changed for another. It was their expectation that the colonial masters would leave and we, the people, would be our own masters.

To ensure this, we must have recourse at all times to the highest form of justice on which we can rely so that no new masters can subvert our inalienable fundamental rights and freedoms.

Let the people speak!

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.