AJ Nicholson | An open letter to Delroy Chuck
Over these past four years or so in Jamaica, issues touching and concerning the Caribbean Court of Justice (CCJ) have been unfortunately absent from public discourse and, from all indications, also from all levels of discussion within the corridors of leadership.
And yet, the interest and the attention of some external agencies have been trained on the regional institution to the extent of conducting evaluations of its strengths, and enquiring into its worth to our Caribbean brothers and sisters since its inception some years ago.
It was reported here that a study recently conducted by the German organization for international corporation found that there is a high level of confidence in the independence and integrity of the court. Its findings recorded strong commendation of the CCJ for its institutional design, organisational capacities and the competencies of the staff.
That Judicial Integrity Scan review was based on the authoritative Bangalore Principles of Judicial Conduct which aims to establish standards of judicial integrity across the globe. And it also utilised Article 11 of the United Nations Convention against corruption as a benchmark of good governance and integrity.
The analysis revealed that the CCJ was faithful in its compliance with the requirements of the Bangalore Principles, including having a Code of Judicial Conduct, the monitoring of its judges’ conformance with that Code, and the high level of public access to the court’s hearings and judgments.
The German corporation was impressed with the manner in which the judges were recruited, noting that the Regional Judicial and Legal Services Commission, the body that appoints the CCJ judges, guarantees free and independent selection based on ability and integrity, with the best candidate being selected from among the applicants.
The corporation applauded the CCJ for being an independent and accessible institution, providing a distinct benefit for the people of the Caribbean as it continuously exemplifies “great transparency and openness”.
Those inspiring findings, you would agree, speak eloquently to the CCJ as a polished regional institution - a product proudly of our own creation. And, incontestably, it can be asserted that no pointer to the contrary has at any time been produced.
Alarmingly, however, your take, Counsel, is that it is not in the best interest of Jamaicans that they should be allowed to have any access of final appeal to this court of “high level integrity” that they are paying for and which, as provided for in the Agreement Establishing the Court, is enjoined to conduct hearings right here on Jamaican soil.
Edward Seaga, in his day, was ferociously opposed to the CCJ. And Andrew Holness, in full battle cry, in brazen breach of our constitutional provisions by insisting on pre-signed letters of resignation, has shown himself all too willing to support and enable that ferocity.
Sadly, despite being armed with your considerable experience as a seasoned practitioner within our court system, you chose to join them in maintaining that it is of no moment that our less privileged Jamaicans, in no position even to obtain the required visa much less able to afford the services of the lawyer, should continue to live with having no access to our present final appeal court, the Privy Council, some 5,000 miles away in the United Kingdom.
In that regard, surely you do not consider yourself to be providing meaningful representation to our economically challenged Jamaicans from Barbican, or a minister of justice for those far-from-privileged Jamaicans in Denham Town or Drewsland or from your own roots in upper Clarendon?
Frankly, Delroy, the undisputed fact is that you, Seaga and Holness have been able to count yourselves fortunate to be numbered among the chosen ones who are in the privileged position to afford to petition, and to have access to, our final appeal court in London, England.
That said, do you consider that the unyielding attitude that you have adopted falls within the orbit of fairness, responsible governance, and the offer of proper, enabling representation, in accord with your campaign promise to fight for, and govern in, the best interests of all our people?
It would be surprising in the extreme were the findings of that study to make any positive impression or lead to an epiphany for you and Andrew Holness. Be assured, however, that the majority of us will never forget, and the historical record, this time at last to be created by our own hands, will survive until the end of time!
And, Minister, there is an extremely troubling, quite inexplicable, reason why there is no chance of your incongruous stance ever being forgotten, and it is this:
You, Seaga and Holness have not been sparing in projecting an abiding confidence in your own abilities and integrity, as minister and as head of government, to be in charge of the fortunes of all persons in our country.
And yet, presumptuously, you have proceeded to embrace the utterly disdainful view that your brethren in our regional family - not unlike yourselves, manifestly well-schooled and eminently qualified - do not possess the required stature and integrity to be able to render quality justice to you and their fellow citizens.
And what is worse, there are outsiders, including a former president of the UK Supreme Court, who has spoken openly against that strange point of view, urging us to believe in the wholesome character of the court that has been a conception out of our own ingenuity, and in the abilities and integrity of the judges who are appointed to deliver justice from its Bench.
You have been stubbornly prepared to continue to repose strong confidence in the integrity and qualities of strangers to our culture and our way of life, and who sit in a court to which the vast majority of our people have no access.
Moreover, let us be clear, Counsel: you have gone as far as to join in the utter fallacy, in daring defiance of the ruling of the Privy Council itself, and brushing aside the dictate of our constitution as Holness unrepentantly is wont to do, of demanding that our poor Jamaicans be required to register their vote in an absolutely unrequired billion dollar referendum as to whether they wish to continue to abide that state of affairs.
Sober thinking strongly suggests, with respect, that this amounts to a gross miscarriage of justice that you, Seaga and Holness have caused to continue to weigh heavily upon our people. And this, even in the face of our people being prepared to react positively to your invitation to be governed by you, by placing their hopes and their aspirations into your hands.
In the end, the basic and fundamental question - the inescapable Achilles heel of your awkward posture - arises: What is the morally undergirding principle that justifies your allowing such a partisan political position to assume precedence over the just entitlements of our people?
And pray, tell: how does your proclaimed personal preference, pining after an imagined elusive Jamaican final appeal court serve to buttress or excuse that dog-in-the-manger stance?
This last, Minister Chuck! For the vast majority of us, who cannot escape wrestling with the agony of those strikingly inglorious portions of our history, being able to appeal to the CCJ would come to represent far more than having access to our final court, significantly enabling as that privilege would prove to be.
The Judicial Committee of the Privy Council was established almost two hundred years ago in 1833 as the Great Imperial Court of the British Empire. It was created in order to be the juridical sentinel of the colonial structure, the ensuing, somewhat less challenging, successor to the genocidal tragedy that the institutionalised system of slavery had been.
Surely you agree that our voluntary severance from the jurisdiction of that institution would constitute a highly symbolic game-changing expression of Jamaica’s growing maturity as an independent nation, now of almost six decades, as we came to subscribe to a final accessible court, meticulously created by our own hands and gratefully acknowledged to be of “high level integrity”.
Do you not consider that such a signature move would embody a lasting testimony to the kind of confidence and vision that we are prepared to bring to the task of charting our own course going forward?
And, would it not also serve as a marked element of the deserved tributes that are owed to the struggle of those, including the Heroes, who laboured in the vineyard before our time?
So, Delroy, as a student of history, including legal history and its lessons; as a thoughtful representative of our people; and as a fraternal citizen of Jamaica, by every historical measure, you are wrong, completely and grievously wrong.
And yet, for you, like the conversion of the wayward Saul to the evangelizing Saint Paul, the revered advocate of Biblical times, your own Damascus road beckons; for, there has to be a solution to the ringing clash of your required faithfulness to the lessons of the law against the demands of your partisan political practice.
Still, from all those vast numbers of our deprived sisters and brothers, and from me, the word is always “Love”. But, never you believe that we will ever forget how you have been complicit in causing us to continue to linger and wallow, unnecessarily, in this avoidable state of deprivation.
Access to all our courts matters, and there must be equal justice under law - a combination that is a central tenet of the proper practice of democracy. Of course, our faith is far too strong for us ever to doubt that we shall overcome. For truthfully, can there ever be surrender?
Rich Blessings, Delroy, as we contemplate the quite unpleasant Windrush deportations from the land of our final court of appeal!
AJ Nicholson, Former Attorney General and Minister of Foreign Affairs and Foreign Trade.