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PUBLIC AFFAIRS - Why not a Jamaican court of final appeal?

Published:Sunday | October 7, 2012 | 12:00 AM
Oswald Harding

Oswald Harding, Guest Columnist

he Gleaner's editorial writer of September 11, 2012 was disingenuous and less than intellectually honest to suggest that [anyone wishes to fabricate a case for] debate the logic of why Jamaica wishes to accede to the Caribbean Court of Justice (CCJ). I am prepared to adhere to the facts and discuss them in their fullest context.

It is a known fact that during my tenure as attorney general of Jamaica, I supported the CCJ. I did so because I thought that the Federal Court was a good one, and that the CCJ might follow suit. In any event, my great interest was to seek to develop a Caribbean jurisprudence.

It is my view that a great desire for leaving the Judicial Committee of the Privy Council and going to the CCJ was to facilitate hanging in Jamaica, as it appeared that the Privy Council judgments were alien to the desires of the Jamaican people.

I am bolstered in this view by the fact that former Prime Minister P.J. Patterson withdrew Jamaica from the First Optional Protocol to the International Covenant on Civil and Political Rights of the United Nations (UN) and thus removed the right of individual petition to the UN Human Rights Committee.

The motive was quite clear. The judgment that the Privy Council handed down in Pratt and Morgan (1993) in essence declared that if execution of a condemned person had not taken place within five years, it would be viewed as cruel and inhumane punishment and a violation of the Constitution and, therefore, had to be commuted life imprisonment.

Obviously, lawyers for the convicted murderer would appeal to the UN, which would create a protracted time for examination of the case and in all likelihood take it beyond the five-year period. This was, undoubtedly, the main reason for moving to the CCJ at that time. This is confirmed by Phillip Paulwell in Hansard when he declared that "was no longer the paradigm".

'Hanging court'

However, as it turned out, the CCJ could not be confirmed as a 'hanging court', as can be gleaned from the Joseph and Boyce decision it handed down in 2006. The CCJ agreed that the 1993 Privy Council precedent of Pratt and Morgan would prohibit the execution of Jeffrey Joseph and Lennox Ricardo Boyce. In this case, five years had elapsed by the time the CCJ heard the appeal, and both men had their sentences commuted to life imprisonment.

What then are the current reasons being put forward by the proponents for the CCJ? A minor reason is that the Privy Council no longer wants to hear our cases. This is less than a half-truth. Although SOME English judges have intimated that point of view, the official position of the United Kingdom government is that it is up to us whether we go or stay.

I have no special desire to maintain the present relationship with the Privy Council. My position is if there is a general accord to leave the Privy Council as our final court of appeal, can consideration be given to establishing that final court in Jamaica?

As a Jamaican, I have every confidence that such a court could be established. One of the arguments against this is cost, and, perhaps, the lack of erudition of some of our judiciary, which I wholly reject.

The CCJ has a trust fund in the sum of US$100 million, which is managed by a special board of trustees in financing the daily running of the court. This money was raised by the Caribbean Development Bank on the international market, on terms that the money to repay the loan, with interest, would be provided in agreed proportions by the participating countries.

My understanding is that the Jamaican Government has paid US$21 million to the fund. This is yet to be confirmed. However, Jamaica's agreed proportion is 27.09 per cent of the US$100 million. This amounts to US$27.09 million. In Jamaican currency, at today's rate, that translates to approximately $2.4 billion. That is a lot of money! That is more than it costs to operate the Supreme Court, the Revenue Court, the Family Court, the Court of Appeal and all the Resident Magistrate's courts for an entire year. Yet it is being spent on a court which, in all the years since its inauguration, has not heard a single case coming out of Jamaica, until the Shanique Myrie v Barbados (2012).

Jamaica is a major contributor to the CCJ fund. Second to Trinidad and Tobago, our contribution is the highest of all the other participating countries. We could channel these vast sums of money into setting up a local court of final appeal; we may even have a surplus to spend on improving our existing courts.

Fund lost

There is a risk that the fund could be depleted irrespective of how good the fund managers are. As a matter of fact, in July 2009, at the 30th regular meeting of the Conference of Heads of Government of CARICOM in Georgetown, Guyana, it was reported that in 2008, the fund lost on its portfolio investment - some 19 per cent - because of the global meltdown.

Former prime minister of Jamaica, Bruce Golding, speaking at the said conference, noted that 70 per cent of the CCJ's trust fund was invested in international equities, and 30 per cent in fixed-income securities. It was also reported that the fund suffered a blow, and of course, ultimately, it will be exhausted.

Whenever the fund is exhausted, we may find ourselves with a commitment in perpetuity to recontribute to the fund. Mr Golding stated that there will be a need to review the fund. The CARICOM group agreed that this review would be undertaken in three years. Three years have passed. Has the review been completed? What are the results?

We have also questioned the lack of Jamaican judges on the CCJ. This was raised by me publicly at a forum at the Norman Manley Law School in 2010, where presenters included the then dean of the Faculty of Law, UWI's Cave Hill campus, Professor Simeon McIntosh and lecturer, Professor Winston Anderson (as he then was).

This is a concern to me, as I had knowledge that some seven Jamaicans had applied. Was it that none of these applicants was qualified?

Within approximately two weeks from this forum, I was called personally by Professor Anderson and told that he was being elevated to the CCJ. I was delighted. I found it interesting that, at Anderson's swearing-in ceremony, the then CCJ President Michael de la Bastide indicated publicly that Anderson was being appointed to the Bench not because he was Jamaican but because of his erudition and scholarship. He went on to say that Anderson was the successful candidate of the three applicants shortlisted. Needless to say, all the applicants were Jamaicans. What conclusion, if any, are we to draw from this?

Jamaica has a strong tradition of lawyers and jurists: Norman Manley, Vivian Blake, David Coore, Ian Ramsay, Dudley Thompson, Carl Rattray and Dr Kenneth Rattray, to name a few. I will resist the temptation of citing contemporary legal minds who could sit on a local court of appeal.

It is worth noting that Justice Edward Zacca, a son of the soil, sat on the Judicial Committee of the Privy Council on three occasions. On the last occasion, he sat with six judges on the question of the death penalty in Jamaica, Barbados, and Trinidad and Tobago. Are you of the view that there are no Jamaican judges who today would be qualified to sit on a local court of final appeal?

In addition to the great jurists that we have produced in the past, are there none today? What about Dr Lloyd Barnett and Professor Stephen Vascianne? Are there none from the present judiciary, and the private and public Bar, who could sit on a local court of final appeal?

Lack of confidence

It is interesting to note that the statistics provided to us by eminent Queen's Counsel, Walter Scott (Sunday Gleaner, September 23, 2012), indicate that within a 10-year period - 2001-2011 - more than 61 per cent of the judgments of the Court of Appeal were affirmed. This does not suggest that we need to have any lack of confidence in our judiciary.

Speaking of averages, it may be of interest to note that in the year 2005, of the 102 English appeal cases disposed of by the United Kingdom House of Lords, 53 were upheld by the law lords. In 2008, of the 86 cases presented, 48 were allowed and 38 dismissed.

What then is the current argument for not having a Jamaican court of appeal? This seems to me as part of the putsch to re-establish regionalism. No one would argue that it is not a great idea. The question is: Is regionalism working?

Trinidad Prime Minister Kamla Persad-Bissessar was recently quoted as saying that the CCJ is not a priority, and also that she would go to the CCJ for criminal matters only. She might have good reasons. Is the CCJ an element in the 'integration or perish' philosophy? Is this an element to attempt to reinvigorate the Grande Anse Declaration?

Our Jamaican judges now sit on cases in Bermuda, the Turks and Caicos Islands, Belize, the Cayman Islands, and the Bahamas. It appears that other people trust our judges. Why don't we?

Professor Oswald G. Harding is dean of the Faculty of Law, UTech. Email feedback to and