Thu | Oct 19, 2017

CCJ fate about to go into slumber

Published:Sunday | May 3, 2015 | 12:00 AMBruce Golding
Bruce Golding
CCJ President Dennis Byron (right) departs the Jamaica Conference Centre after a session of the Shanique Myrie case. The Myrie decision has implications for immigration law and procedure across the Caribbean.
Sir Dennis Byron, president of the Caribbean Court of Justice, has batted hard for regional acceptance of the court.
1
2
3

Discussions surrounding the establishment of a regional final court have meandered for almost 50 years. Ironically, it was then prime minister and de facto JLP leader, Hugh Shearer, who first formally proposed the idea at the 6th CARICOM Heads of Government Conference in April 1970.

The official communique issued by the conference stated that "a general but not unanimous view was expressed that it was desirable that Commonwealth Caribbean countries should move toward the termination of appeals to the Judicial Committee of the Privy Council". The JLP Government in 1987 reaffirmed that position, although the details of the establishment and operation of the court were still to be worked out and agreed.

The JLP's position changed

during the 1990s, and not without reason. In a Gleaner article published on December 7, 2014,

former Prime Minister Edward Seaga attributed this to the inherent risk of uncertainty at a time when changing circumstances had pivoted the justice system into a more crucial role than hitherto obtained. That unease was aggravated when the initial proposal, signed off on by the CARICOM heads of government as to how the judges were to be chosen, was tabled.

The plan was for the heads to select the president, who would,

in turn, chair the regional judicial service commission that would

select the other judges. The majority of the members of that commission would be government appointees or representatives.

As if providence intervened to illustrate this clear and present danger, the then prime minister of Trinidad and Tobago launched a vicious attack against the chief justice of that country, using a political platform to declare him a public enemy. That was certainly not the type of hands in which to entrust the delicate responsibility of selecting judges for our highest court.

Another major concern was that the court would be funded by annual budgetary contributions by member governments, an arrangement that did not augur well, given the experience of other regional institutions where governments were notoriously in arrears in their contributions.

Faced with strong objections from the Jamaican Opposition and various professional and civil-society groups, the heads of government agreed to amend the proposals to provide for the selection of judges to be made by a regional services commission that was substantially insulated from political control and for the establishment of a trust fund to finance the court's operations.

By then, however, the anxieties on the part of the Opposition and other groups had become deeply rooted. The Opposition agreed to accede to the court's original jurisdiction for the purpose of interpreting the CARICOM treaty and ruling on matters pertaining to the rights of CARICOM persons pursuant to that treaty but was not prepared to support the court as a replacement for the Judicial Committee of the Privy Council.

As the Government moved to amend the Constitution to install the CCJ as our final court, Mr Seaga put forward a compromise. He suggested that the court be installed as an intermediate court, i.e., one that would hear appeals from the Jamaican appeal court but its decisions would be subject to appeal to the Privy Council. He suggested this as an interim measure that would allow us to see how the CCJ works, build confidence, be reviewed after a period

of 10 years, and then put to the people by way of a

referendum.

Such a structure would not be unique, as in the United States, appeals can go from a state's appeals court to its Supreme Court and finally to the federal Supreme Court. For this purpose, the US federal system is not structurally dissimilar to the CARICOM arrangement.

Sadly, Mr Seaga's proposal was never seriously debated. Had that approach been taken, that 10-year 'trial period' would now have elapsed and we would have been in a far better position to make a determination and, possibly, arrive at a consensus.

 

referendum rejected

 

The insistence on a referendum was based on the view that changing the structure of our judicial system was of such fundamental significance that it should have the imprimatur of the people - not just their representatives in parliament.

The PNP has consistently rejected the notion of a referendum, arguing that (a) matters pertaining to the judiciary are too sensitive to be subjected to the turbulence of a plebiscite; and (b) the conduct of a referendum is likely to be less about the CCJ and more about everything else. The first reason is flawed because it suggests that the people, the ultimate arbiter in a democracy, are not competent or cannot be trusted to make important decisions that affect their lives.

But, the PNP's referendum phobia that has persisted ever since its 1961 defeat aside, its second reason is a real issue, given the nature of our politics. A senior Cabinet minister once told me that the PNP would only agree to a referendum on the issue provided that both sides reached a consensus and presented a joint recommendation to the electorate.

But I don't think that the importance of consensus is fully appreciated by the Government. Its efforts to use its parliamentary majority to replace the Privy Council with the CCJ in 2004 were subsequently struck down by the Privy Council.

The Government has now represented the proposal, not unmindful that it requires a two-thirds majority in each House, as mandated by the Privy Council. Unless the intention is merely to make a statement and record the relative positions of the Government and Opposition, the approach is flawed.

While the Government enjoys a two-thirds majority in the Lower House, there is no basis that I know of for it to expect that at least one opposition member in the Senate will break ranks to give it the required majority there. The opposition leader has said that this was his legitimate concern in requiring the undated letters of resignation from his Senate nominees. If the Government fails to secure the two-thirds vote in the Senate, its only option, as set out in Section 49 (6) of the Constitution, would be to send it back to the Senate; and if it fails again, it can be put to a referendum, except that in such circumstances it would require a two-thirds majority of those who vote, something that has never been achieved in Jamaica.

The expected party line vote that is to be taken shortly will, therefore, put the CCJ issue in a deep slumber from which it is unlikely to be stirred for another generation.

 

no analysis of performance

 

The truth is that over the many years of deliberations, not sufficient effort has been made to achieve consensus through quiet discussion and compromise. Instead, we have wrestled each other over our different views. Select committees and parliamentary debates are not the ways to resolve differences and reach agreement. No serious effort at bipartisan diplomacy was made.

A misfortune in all of this has been the absence of any discussion about the performance of the CCJ in its 10 years of existence. In its appellate jurisdiction, it has so far handed down 99 decisions. In the three-year period 2012-2014, it delivered 40 decisions. During that same period, the Privy Council handed down 125 decisions, 49 of which relate to CARICOM countries that are members of the CCJ but have not acceded to its appellate jurisdiction. Trinidad and Tobago (21) and Jamaica (19) top the list.

That the CCJ is underutilised has never been disputed given that it considers appeals only from Barbados, Guyana, Belize and, as of only last month, Dominica. It is reasonable to assume that it would have done much more if other countries subscribed to its appellate jurisdiction. I was unable to determine the time that elapsed between its hearing of an appeal and the delivery of its decision because, unlike the Privy Council, where the average is 81 days, the CCJ website does not provide that information.

I am yet to hear any serious discussion about the quality of the decisions that have emanated from the CCJ, especially among our legal practitioners. Although I have read some of them myself (and they make easy reading), I am not competent to comment on their jurisprudential attributes. It would be helpful if those who have that competence provided us with their perspective.

I hold the view that we must be prepared to depart the Privy Council, and it can be well argued that after more than 50 years of independence, it is time enough. My position is driven not so much by the issue of sovereignty, because both the CCJ and the Privy Council are, in essence, foreign courts that are external to our Constitution.

 

UK could close door to privy council

 

In my time, the Cabinet had appointed a ministerial committee to review our position on the CCJ. The committee offered the alternative of establishing our own final court. We did not sign off on that proposal given real concerns about our ability to properly fund another court, but we put it forward for discussion.

I am more concerned that even if we choose not to leave the Privy Council, it can choose to leave us, notwithstanding the periodic assurances we receive from the UK. The hearing of our appeals represents a cost to the British government that has so far survived austerity measures but that is hardly a basis for confidence that our judicial arrangements are secure.

The recent declaration by Opposition Leader Ed Miliband that if his party wins next week's elections he would, within six months, effectively discombobulate the offshore financial arrangements of overseas territories like the Cayman Islands is a clear indication of the vicissitudes of British politics to which we are exposed.

I am concerned, as well, that the much-touted greater access that the CCJ offers, especially to poor litigants, has not addressed the fact that criminal cases, especially death-penalty ones, heard by the Privy Council are invariably done by British lawyers on a pro-bono basis, without which the majority of those cases could not have been submitted. I am not aware, even after 10 years, that any similar arrangement is in place for the CCJ.

Investor confidence has often been cited as a reason for retaining the Privy Council. Yet, such an argument would have to contend with the experience of countries like Panama, Costa Rica, Ecuador, Guatemala and the Dominican Republic that all have their own final courts and enjoy investment flows that are multiples of our own.

I am concerned, as well, about the recent statement in Parliament by the prime minister that the trust fund that finances the CCJ will require further capital injection by member countries to sustain the court beyond 2030. When the trust was established, we were assured that the US$100 million, of which Jamaica contributed 25 per cent, would have been sufficient to finance the court in perpetuity. Our contribution of US$25 million is 12 times what we currently allocate annually to our court of appeal. Much more explanation is needed.

- Bruce Golding is a former prime minister of Jamaica. Email feedback to columns@gleanerjm.com.