Thu | May 25, 2017

CCJ bills - another decade (Part 2)

Published:Sunday | May 3, 2015 | 5:00 AMDonovan Jackson

This is the second of a two-part commentary by attorney-at law Donovan Jackson.

Part One was carried last week.

READ: Donovan Jackson: CCJ Bills - Another Decade (Part 1)

Eminent jurists Justice Patrick Robinson (recently elected to serve as a judge in the International Court of Justice for a nine-year period beginning in February 2015) and Justice Seymour Panton (current president of the Court of Appeal), are among those who have raised Jamaica's alleged 'colonial mentality' for the failure of Jamaica to abolish appeals to the Privy Council.

The criticism is understandable, but is somewhat harsh, if not unfair, to the Jamaican

people. It ignores the fact that the Jamaican people have never been educated on the issues or given an opportunity to decide, and it assumes that the right to reject the CCJ, indeed the right to reject CARICOM itself were that the political will is not acceptable and is not an available option and a possible

outcome. That is, the argument proceeds on the basis that CARICOM is a given and the CCJ a fait accompli.

Without ensuring we had the basis on which we could make use of the courts original and appellate jurisdiction, Jamaica committed to, and contributed, some US$27 million as its share in seed money for the CCJ Trust Fund. It is difficult to justify where, given our impecunious state, this money had to be borrowed through the Caribbean Development Bank and has to be repaid.

In short order, we had to run cap in hand to the IMF. And to rub salt into the wound, my understanding is that the CCJ Trust Fund has lost some 19 per cent from the international financial meltdown and that one projection suggests that the fund will be exhausted in 30 years and will need replenishing.

How we came to a decision that Jamaica should contribute up to 23 per cent of the cost of the CCJ on this foundation, that is, where only participation in the court's original jurisdiction was assured, is unclear and can only be explained by the difficulty our political leaders face attempting to effect change of this nature.

The main battle cry in support, the oft-repeated refrain, "have we no shame ... .", given that we seem to be waiting to be kicked out by the Privy Council, whose judges have other work to do is also understandable. I agree, but am of the view that that we also have to understand the two assaults on the Constitution by sitting governments, leading to two well-known decisions from the Privy Council itself striking down unconstitutional legislation: Hinds v R[1977] AC 195 and IJCHR & Ors v Marshall-Burnett and Anor.[2005] UK PC 3.

will future court response be favourable?

In both, the legislature, by ordinary legislation passed by a simple parliamentary majority enjoyed by any sitting government, disregarded entrenched provisions and the structure of the court system set up under our Constitution and sought to unilaterally change same.

The question is whether the replacement court faced with the future equivalents of these types of assaults on a constitution and the serious conflicts that arise in the tension between the legislature, the executive and the judiciary, will be as willing and able to respond favourably. Are the Jamaican people willing to take the risk? If they are, we have no issue.

The Jamaican people do not seem to trust their political leaders to the extent that is necessary for us to move forward. Our political leaders do not trust each other. It is a truism that our politics has been accurately defined as 'the fight

for scarce benefits between two hostile tribes who seem to be perpetually at war' and about 'who gets what, where, when and how'. Unfortunately, every decision, including 'whither we go - CCJ or not?', is at risk of being unduly influenced and tainted by this

truism in some manner. But I have to accept that that is the reality of Independence.

It is not only Jamaicans: Trinidadians, Vincentians, St Lucians, Kittitians, Antiguans and Grenadians also have this alleged colonial mentality and are shameless? Whatever we may think about the matter, there is a real and arguably a justified fear by Caribbean people with respect to the bona fides of Caribbean politicians and their maturity on issues of this nature. The reluctance and slowness to engage is not surprising.

This maturity was not exhibited, for example, by former Trinidad PM Basdeo Panday, once a staunch advocate of the CCJ. Panday had signed the 2001 CCJ agreement as Trinidad's PM when in office. When voted out of office and in opposition, he apparently came to the realisation that it was not such a good idea and refused to support passage of the necessary legislation through Trinidad's Parliament.

The upshot is that the CCJ is seated in Trinidad at 134 Henry Street in Port-of-Spain but Trinidad does not access its appellate jurisdiction, with the result that the two most populous states in CARICOM, Jamaica and Trinidad who ought to have led the charge, have not acceded to the court's appellate jurisdiction, while only Barbados, Guyana, Belize and Dominica (a minority) have after 10 years.

Better arguments in support

There are many much better arguments in support of the CCJ than 'we have spent an enormous sum of money', which we shouldn't have spent already, ergo we may as well sign on'. To launch that as an argument (at all) is worrying. As it then explains the reason for the expenditure as one intended to lock us in before the deeper decision was made and could go to bona fides.

I don't actually think this was the case, as I also appreciate the inability of our leaders to effect meaningful change and must assume the best intentions and an element of frustration. Apart from 'sleight of hand', it is difficult to understand why you would commit to expenditure at that level when there was no guarantee the measure would have acceptance.

What is clear is that the CCJ cannot now be made a fait accompli by virtue of the premature commitment of money we could ill afford. There are far more wholesome and honourable reasons than that to support it.

There is also the valid argument that we need to grow up and govern ourselves, make the mistakes, and even misgovern ourselves. True, but this has to be balanced against the burden of such mistakes: Who bears the burden of police abuse and the costs of such misgovernance? There are many Jamaicans who view our very independence as a colossal failure and have a sound rationale on which they arrive at such a conclusion.

Jamaicans have been, and are still driven, to migration to Canada, the USA, and Britain in search of a better life or to have an escape valve, including at times members of the very Parliament which passes the legislation by which we engage.

We cannot fault the Jamaican people for the deep-seated mistrust of their leaders. That deep-seated mistrust has been well earned in many instances. Indeed, if "Scepticism is the highest of duties and blind faith the one unpardonable sin", Jamaicans have a right if not a duty to be sceptical and to seriously question any change of this magnitude before any decision is made, whether it is to remain with the Privy Council, adopt the CCJ, adopt a further tier of appeal in the form of a final local Court of Appeal or treat the existing Court of Appeal as the final Court.

If the people of Jamaica are not in agreement and a court is imposed with stealth, that court will be at risk of being rejected at the first hurdle or two faced in the form of hard and unpopular decisions under law and soon we will be discussing how to delink from that which we joined.

If the Shanique Myrie case, for example, was decided by the CCJ in favour of Barbados as was strenuously argued, would Jamaicans be as accepting? I am of the view that they would be far more sceptical. Yet in the real world, this was a possible outcome that I can assure you will happen should we ever engage.

- Donovan Jackson, BSc, LLB, is an attorney-at-law. Email feedback to columns@gleanerjm.com and djacksonj@nsdco.com