Franklyn Senator Delano Franklyn, Minister of State in the Ministry of Foreign Trade, establishes a timeline of the history of the discussions about the establishment of the Caribbean Court of Justice.
IN GIVING support to the implementation of the Caribbean Court of Justice (CCJ) I wish to make a few points.
The first point has to do with the timing of the Caribbean Court of Justice. Speaking on a radio talk show on May 2, 2003, one public commentator said that 'we (the Government) seem to be doing it (seeking its implementation) in a hurry'.
This is simply not true. From as early as 1947 a meeting of West Indian Governors in Barbados reportedly reflected on the need for a West Indian Court of Appeal and urged its establishment. That was 56 years ago.
It was not until April 1970, however, that any serious debate took place on the establishment of a Court of last resort for the Caribbean. It was then that Jamaica tabled a Resolution at the Sixth Conference of the Heads of Government of the Caribbean Community held here in Kingston calling for its implementation.
That was 33 years ago. The move to implement a proposal, which for over 33 years has been the subject of broad discussion, under different governments, cannot be regarded as being undertaken 'in a hurry'.
GOVERNMENT/OPPOSITION
The second point has to do with the fact that both the Government and the Opposition have always agreed on the need for a Caribbean Court of Justice.
It was the JLP Government that moved the resolution at the Sixth Meeting of the Heads of Government in Kingston in 1970, calling for the establishment of a committee of Attorneys-General to consider the question of establishing a final appellate Court in the Caribbean. The People's National Party, which formed the Opposition at the time, gave its full support to the Resolution.
Acting on the mandate of the resolution, the Attorneys-General met in Barbados in August 1970 and in Guyana in March 1971.
In August 1971, a report in the Advocate newspaper in Barbados outlined the reasons which were advanced by those who were in favour of the Court:
(a) That its establishment would be in keeping with the idea of an independent Caribbean and would assist in the loosening of the old colonial links.
(b) The high cost of taking appeals to London.
(c) That judges in London were not qualified to make legal decisions in a Caribbean context.
(d) There was confidence that the region possessed sufficiently qualified persons to build up a Caribbean jurisprudence.
Unfortunately, the push for the establishment of the CCJ was not as aggressive during the late 1970s and the early 1980s, despite the fact that both the Government and the Opposition held similar views on the matter.
The debate picked up pace in 1987 under the then Prime Minister, Mr. Seaga.
At a Conference of Caribbean Heads, which was held in Trinidad and Tobago in 1987, Caribbean Leaders gave a mandate to the Caribbean Attorneys-General to again consider the replacement of the Privy Council by a Caribbean Court of Appeal.
Following its mandate, the Caribbean Attorneys-General, including former Senator Oswald Harding, the Attorney-General of Jamaica at the time, met in Dominica from April 13 14, 1988 and considered the, "options for the Establishment of a Caribbean Court of Appeal." After that, the Attorneys-General made their recommendations to the Heads.
Those recommendations were considered at the 8th Summit of Caribbean Heads in Antigua in 1988. At that meeting the Jamaican delegation and other delegations discussed the recommendations from the Attorneys-General and agreed that:
"Immediate steps (should be taken) towards the definite and expeditious establishment of a Caribbean Court for English-speaking Caribbean countries.
"In arriving at their conclusion, the meeting had recognised the diminishing use of the Privy Council by other Commonwealth countries, and signals from the United Kingdom that the Privy Council would eventually not be accessible to the remaining Commonwealth countries that made use of it. The meeting had further recognised that the relatively high cost of appeals to the Privy Council was a factor inhibiting access to that body.
"The meeting was also of the view that the establishment of a Caribbean Court of Appeal would be a further step in deepening the Caribbean integration process by the emergence of participating countries."
The PNP then in Opposition, gave its full support to that recommendation and has continued since 1989 as the Government to vigorously follow through on that recommendation.
Quite surprisingly, the Opposition in 2000 decided to change its position.
Its 2002 Manifesto stated:
"The threat by the Government to withdraw from use of the Judicial Committee of the Privy Council as the final Court of Appeal for Jamaica poses serious concerns for the quality of final judicial review". (p. 176)
No such concerns were expressed in 1970: Neither were such concerns expressed in 1988.
The Manifesto further pointed out that the Opposition, if it had formed the Government in 2002, would have:
"Continued to utilise the services of the Judicial Committee of the Privy Council as the final Court of Appeal."
Two questions must therefore be asked.
(a) What has caused this shift in position?
(b) What has happened to the reasons advanced by the Jamaica Labour Party in 1970 and in 1988 for developing the CCJ:
The diminishing use of the Privy Council by other Commonwealth Countries;
The relatively high cost of appeals to the Privy Council which inhibited access to that body and;
The establishment of a Caribbean Court of Appeal would be a further step in deepening the process of Caribbean integration.
The fact that the region possessed sufficiently qualified persons to build up a Caribbean jurisprudence.
The reasons put forward by the JLP in 1970 and in 1988, for the establishment of the CCJ, are as sound today as they were then.
REDUCTION IN NUMBERS
My third point has to do with the reduction in the number of countries with ties to the Privy Council.
When the Judicial Committee of the Privy Council (JCPC) was formally constituted by the Judicial Committee Act in 1833, 64 colonies had the right to make appeals to that body. Since then 35 countries have severed ties with the Privy Council.
Today, only 29 countries have retained links with the Privy Council. The 29 countries consist of:
Eleven independent Caribbean states and four other independent states.
Six colonial Caribbean states and eight other colonial territories.
What lessons may be drawn from this?
(a) That the number of countries with ties to the Privy Council has been reducing over the years.
(b) Most countries severed ties immediately after becoming independent, expressing the view that legislative and judicial sovereignty are two sides of the same coin.
(c) That the vast majority of independent countries still tied to the Privy Council belong to the CARICOM Community.
COST TO PRIVY COUNCIL
My fourth point relates to the issue of cost. There are some persons who argue that our relationship with the Privy Council is of no cost to the Government. This is simply not true. The Director of Public Prosecution (DPP) is charged with the responsibility to prosecute criminal cases and the Attorney-General's Department litigates civil cases. Between 1995 and 2002, the average annual expenditure paid by the Government to English Solicitors who acted on behalf of the DPP and AG, as well as for airfares, accommodation and meals for officers of the AGD and DPP who appeared before the Privy Council was J$11.2m.
Between 1995 and 2002, J$78.8m was paid out by the Government as a result of appearances at the Privy Council. That is the cost to the Government, but there is also a significant cost to the appellant.
Today, if you wanted to appeal a decision from the Court of Appeal to the Privy Council, it could cost you nothing or as much as J$2m.
Nothing, because in the case of some criminal matters, international human rights organisations will provide legal services free of cost to the appellant.
From 1962 to 1999 for example, only 105 criminal cases were taken to the Privy Council an average of under three per year.
The majority of the civil cases to the Privy Council are undertaken by large companies. For the same period 1962 to 1999, 57 civil cases were taken to the Privy Council, an average of fewer than two per year.
n Generally speaking legal cost for English solicitors range from $500,000 to $2 million depending on the nature of the case.
n Jamaican attorney fees range from $350,000 to $2 million including transportation, accommodation and meals.
What this means is that access to the Privy Council is out of the reach of the vast majority of our people.
Article III of the Agreement establishing the CCJ provides that the CCJ may sit in the territory of any country that is a party to that agreement.
The CCJ is therefore expected to have sittings in Jamaica, thus significantly reducing the cost to appellants.
Credibility of CCJ
My fifth point has to do with the credibility of the CCJ. It has been pointed out elsewhere that, "perhaps the most convincing proposition set out by those who favour the retention of the Privy Council is its perceived impartiality." The impartiality of the Privy Council is primarily as a result of the quality of its judges.
The integrity of the CCJ will also be determined to a very large extent by the quality of our judges, and the degree to which they will be insulated from partisan political pressure.
The Heads in the Caribbean have not ignored the concern expressed about the need to ensure the integrity of the system of selection for judicial office.
This concern will be addressed by the establishment of an independent Regional Judicial and Legal Services Commission as outlined in Articles V, VI, VII, VIII and the tenure of office of the judges as is stated in Article IX of the Agreement establishing the CCJ.
The judges of the Court will also be governed by a Code of Judicial Conduct. This will impose a duty upon a judge, to observe high standards of conduct and uphold the integrity and independence of the judiciary. As is stated in Article IV Section II;
"In making appointments to the office of Judge, regard shall be had to the following criteria: high moral character, intellectual and analytical ability, sound judgement, integrity and understanding of people and society."
CCJ & CSME
The most important reason for the introduction of the CCJ is the fact that CARICOM is now being transformed into a CARICOM Single Market and Economy.
The CARICOM Treaty and its Protocols will regulate the CSME.
Article 11 of Protocol IX (which deals with disputes settlement) provides that the CCJ;
"shall have compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the treaty."
This provision was incorporated in the Protocol because no such legal machinery now exists.
If the CARICOM Single Market and Economy is set to come into being by December 2004, the CCJ must become operational before then in order to be able to settle commercial disputes between the parties.
The Jamaica Bar Council in 2000 posited the view that:
"As with all international treaties an appropriate arbitration facility could be created and that this in itself was not a reason for a Caribbean Court".
Article XXIII (Section 1) of the Agreement encourages the use of arbitration;
"Each contracting Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes."
But there is the need for more than arbitration in a highly competitive economic zone. Arbitration facilities are too uncertain as they are predicated on consensual agreements. Those who are involved in business require a legal mechanism which can guarantee predictability, certainty and transparency. They require a legal mechanism that can compel, instead of arbitrate the settlement of disputes. The failure to implement the CCJ will seriously jeopardise the economic viability of Jamaican firms, as Jamaica will not be able to settle commercial disputes which are bound to arise in an economic environment which will be far more competitive with the advent of the CSME.
There are those who ask why the original jurisdiction for interstate matters has been combined with the appellate functions of the same court for civil and criminal matters? Put another way, the question is really asking whether or not the court of original jurisdiction for interstate matters can function separate and apart from the court of appellate jurisdiction for civil and criminal matters?
The simple answer is yes, but what wisdom would there be in doing that?
In the first instance, one has to consider the issue of cost. Would it be wise for the Government to spend $12 million per year on cases going to the Privy Council and thereafter find millions more to support another Court in the Caribbean?
The second issue has to do with the repatriation of our sovereign judicial rights. If the establishment of our own Court in the Caribbean is a fulfilment of our desire to demonstrate that we are capable of being our own judicial masters, why should we be half hearted about it? Why establish a court of original jurisdiction for inter-states commercial disputes and ignore civil and criminal matters?
Surely, if we can identify judges who are able to give sound, learned and quality judgements in commercial disputes we will also be able to find judges who can deliver sound, learned and quality judgements in appellate, civil and criminal cases.
Finally, those who ask why the original jurisdiction of the CCJ has been combined with the appellate functions of the same court are really asking whether or not the court will be able to deliver sound, learned and quality judgements in appellate, civil and criminal cases. It is a subtle way of expressing doubt in the ability and credibility of our judges.
Referendum
I now turn to the matter of whether or not our withdrawal from the Privy Council ought to be the subject of a referendum.
Those who advance such a position, argue among other things, that a referendum is the epitome of democracy. They further argue that where democracy may be conceived to include, "popular sovereignty, political equality, popular consultation, majority rule and minority protection", a referendum is the best way of putting these things into practice.
In support of this view, the referendumists also point to the increasing use of referenda in some countries. On the face of it, nothing seems to be wrong with this line of reasoning. It seems pretty persuasive.
But everything in life has to be put in its proper context. Firstly, the experience so far is that referenda are usually used where the Constitution of a country is silent and does not give clear constitutional guidance on an issue.
If the Jamaican Constitution had been ambiguous on the issue of our withdrawal from the Privy Council then no one could argue with the proposal for a referendum.
But ambiguity is not an issue. The Jamaican Constitution is very clear on the procedure to be adopted in severing links with the Privy Council. All that is required is a majority in both Houses of Parliament.
The provisions relating to the Judicial Committee of the Privy Council are contained in Section 110 of the Constitution of Jamaica. This clause can be amended by a Bill which receives a majority vote of all the members of both the House of Representatives and the Senate.
Section 49 of the Jamaican Constitution sets out very clearly the clauses which can be changed by a Bill which receives a majority vote of all the members of both the House of Representatives and the Senate. It also sets out those clauses that are entrenched and those which are deeply entrenched.
Despite this situation, those who oppose the introduction of the CCJ are prepared to select one clause which can be changed by a Bill with majority support in both Houses and have us treat with it as a deeply entrenched clause by asking for a referendum. I have a problem with this selective approach. From a constitutional perspective it is rather untidy.
Secondly, some of those who are calling for a referendum argue that a 'fundamental right'
of the Jamaican people will be taken away if we were to withdraw from the Privy Council. No such right will be taken away. That right will be preserved and protected. The only difference is that the right of appeal will no longer be sent to a foreign court, but instead to a properly constituted court here in the Caribbean. Justice will be no less. Our Judges have demonstrated that they too have the requisite skill and competence to perform as good as, if not better than judges elsewhere.
Thirdly, the CCJ will also be a court of original jurisdiction. It will be required to arbitrate in commercial disputes. Our participation in the CARICOM Single Market and Economy (CSME) is not something from which we can shirk referendum or no referendum.
Yet, I can hear those who oppose the CCJ saying, go ahead and set up the CCJ in order to deal with commercial disputes but do not sever ties with the Privy Council unless there is a referendum. This is contradictory in terms.
Those who oppose the CCJ cannot have it both ways. They cannot be saying that on the one hand, the CCJ will be fair in its original jurisdiction but on the other hand, will be unfair in its appellate jurisdiction. It is contradictory to argue for a referendum in one case but not in the other. A referendum on our withdrawal from the Privy Council is not necessary for the following reasons;
1. Our constitution is very clear on the procedural norms to be followed on this matter.
2. The Privy Council is being replaced by a court of equal competence and manned by judges who can be compared with the best in the world. Why then do we need a referendum on our judges?
3. It is contradictory to argue for a referendum in order to establish a court with appellate jurisdiction, and then adopt a different approach for a court of original jurisdiction.
4. We are not taking away the right to appeal. We are relocating the appellate court in order to give a greater number of people that right to appeal. Why then do we need a referendum in order to increase the number of people who will be able to make appeals to the highest court?
5. The right to self determination is a time honoured principle - why do we need a referendum to determine if we must continue to be dependent. As a well-learned attorney from the UK wrote in 1999, 'colonialism remains colonialism, however benevolent its administration.'
Self determination
The issue of the Caribbean Court of Justice also, quite understandably, gives rise to the emotional issue of the right of a people to self-determination.
One of our leading judges in his submission to the Constitutional Commission in 1992 was quite forthright in his comments;
After 36 years of so called independence, Jamaican judges have to be facing the infra dig situation where we cannot afford to think without seriously considering what our English counterparts sitting in England would wish us to do.'
As a people why should we, before arriving at a decision, have to consider what others from outside would wish us to say or do. Are we saying that, 41 years after Independence, we do not have judges with the 'intellectual ability, integrity, capacity for hard work, character, moral soundness and independence' of mind to arrive at their own decisions? I am sure we do.
I am confident that we have judges in the Caribbean who are able to give judgements which reflect our own scholarship and ethos while at the same time applying established legal principles.
My generation will not buy into any suggestion that we lack the self confidence or the ability to manage our own judicial affairs. I view the implementation of the CCJ as one more step towards full and total independence a further step towards doing things for ourselves, instead of depending on others to do it for us.
