Byron Buckley, Contributor
WHILE THE Government and Opposition wrangle over Jamaica adopting the Caribbean Court of Justice (CCJ) as the country's final appellate court, the regional tribunal has been quietly impacting the lives of ordinary citizens across the Caribbean Community (CARICOM).
The CCJ has been hearing appeal cases in Guyana, Belize and Barbados, which have chosen it as their final appellate court. In addition to appeal cases, the CCJ has also heard trade or treaty-related cases under the CARICOM Single Market and Economy (CSME) agreement. One such case relates to Shanique Myrie, the Jamaican woman who allegedly endured a humiliating body search by Barbadian border-control personnel last year.
How this case is handled by the Trinidad-based CCJ, could help in removing doubts in the minds of many Jamaicans, about its competence and suitability to also function as the country's final appellate court. This role is now being performed by the United Kingdom-based Privy Council.
But Government and Opposition are in disagreement about the means by which Jamaica should replace the Privy Council with the CCJ. The Simpson Miller administration wants to go this route, which requires the consent of two-thirds of the membership in the Lower and Upper Houses of Parliament.
IS A REFERENDUM NECESSARY?
On the other hand, the Andrew Holness-led Opposition contends that the decision to replace the Privy Council with the CCJ should go ahead only through the people's assent in a referendum.
However, abolishing appeals to the Privy Council does not require a plebiscite under the Jamaican Constitution, as the Privy Council is not a deeply entrenched provision. The Opposition's contention seems to surround whether there is public confidence in the CCJ as a suitable replacement for the British tribunal.
Whatever views have been proferred, it appears that the Opposition has no confidence in the CCJ and would likely campaign against it in a referendum. This runs the risk of politicising the issue, prompting people to vote along party lines.
However, Delroy Chuck, the shadow justice minister, told this newspaper last Thursday that the Opposition has no reservations against the CCJ but wants public approval in a referendum. But those comments come into conflict with Holness' recent call to defer talk of the CCJ and to focus, instead, on improving court infrastructure and reducing case backlogs in Jamaica.
Of course, there are lingering doubts among some Jamaicans as to whether the CCJ can deliver a brand of justice that is fair and immune to political interference. But the justices of the CCJ are distinguished and professional jurists, not political apologists. The court's performance, since its establisment in April 2005, should serve to increase the confidence of doubters in Jamaica.
Indeed, the Shanique Myrie case provides a perfect opportunity for all Jamaicans to observe the regional court at work and determine its competence. The case is unique in the sense that the CCJ is reviewing it on the grounds that it is a treaty-related matter, as opposed to a criminal, civil or constitutional appeal case.
Under the CSME agreement, as provided in the Revised Treaty of Chaguaramas, Jamaican citizens are entitled to travel freely to member states. Ms Myrie is contending that her right of freedom of movement was violated by Barbadian immigration personnel when she was searched, detained, and returned, against her will, to Jamaica - without any legitimate cause.
Although the justices of the CCJ are reviewing this case as an original jurisdiction or treaty matter, this will serve as a study in the operation of the court, and signal to Jamaica whether it should also sign on to the appellate jurisdiction of the CCJ.
CCJ AT WORK
While Jamaicans have not been sending appeal cases to the CCJ, other CARICOM nationals have been utilising the tribunal. Among these are two women (one very elderly) from Guyana, who had a long-running dispute about the right to occupy a condominium. With Guyana having no second-tier appellate court, having abolished appeals to the Privy Council decades ago, the women seized the opportunity to bring their case, Elizabeth Ross v Coreen Sinclair (2008), before the CCJ.
The court heard the matter, with two Guyanese attorneys representing the women without charging a fee. The women never had to travel to Trinidad, as they gave witness via videoconferencing equipment that the CCJ has installed in courts of member states that never had them.
"Ordinary folk now have additional scope and opportunity to be heard and to obtain justice," notes CCJ President Sir Dennis Byron. This contrasts with the distance of the Privy Council in England and the related costs of legal representation. In terms of access, the CCJ has the option to sit in different countries, as it has done in Barbados.
It should be noted that, so far, the CCJ has received more civil cases than total criminal and constitutional matters combined. This shows that there are relatively fewer cases involving the government - a reversal of what obtains in countries without the CCJ. Justice Byron, who met with journalists from the region in Port-of-Spain last week, underscores the point that civil cases heard by the CCJ are not limited to wealthy people or corporate entities.
So, the CCJ is bringing justice in the reach of ordinary citizens, as opposed to the current arrangement in territories like Jamaica where final appeals are made to the London-based Privy Council.
Although Jamaica has not yet signed on to the appellate jurisdiction of the CCJ, local lawyers - as well as judges - have been benefiting from the Caribbean case law or jurisprudence being developed by the rulings of the regional court. Indeed, Jamaican lawyers have been developing their professional skills by appearing before the CCJ. So, like it or not, Jamaica has already begun to benefit - directly or indirectly - from the operation of the CCJ.
In the meantime, the CCJ and the entire region anticipate benefiting from the "intellectual nourishment", that Jamaica's full participation in the court would bring, according to the CCJ president.
Debate in the region about the need to replace the UK-based Privy Council first began in Jamaica by way of a Gleaner editorial in March 1901. Surely, a century is more than adequate time to contemplate this issue - in the face of continuous prompting by the post-colonial power.
After 50 years of Independence, it's time for the doubters to get on board.
Byron Buckley is associate editor of The Gleaner. This article expresses his personal views. Send comments to firstname.lastname@example.org or email@example.com.
Between July 2005 and June 22, 2012, the CCJ received 94 appeal cases from Barbados, Guyana and Belize, combined.
For the same period, 12 treaty-related matters have been filed with the court, with 10 already adjudicated.
Legal representation in appellate cases involves 45 senior counsel and 130 junior counsel.