Sat | Sep 22, 2018

EDITORIAL - It may be time to horse-trade on CCJ

Published:Tuesday | November 25, 2014 | 12:00 AM

If it did anything, Andrew Holness' statement about the Caribbean Court of Justice (CCJ) at the Jamaica Labour Party's annual conference 10 days ago reaffirmed that he has no deep philosophical opposition to the court.

Mr Holness and the JLP's antipathy to the court is really a tincture of an ill-defined opposition to/fear of regional integration and a potent amount of political opposition.

Even if young supporters have no idea of the root of this sentiment, bashing perceptions of Jamaica dabbling too deeply in regionalism, with people who supposedly don't respect Jamaicans, sells well with the JLP base.

These views are overlaid by suggestions that an embrace of the CCJ means ditching the insulated Privy Council in London, whose justice is free to Jamaica. "And we want to tek we self (take ourselves away) from that," Mr Holness, the JLP leader, told supporters.

There are, however, a couple of truths to bear in mind. First, neither the Privy Council nor any other court in the world has greater insulation in the appointment of judges, the process for their removal, or the way it is financed than the CCJ.

Underutilised Investment

Further, by signing to its criminal and civil jurisdiction, Jamaica will be paying no more for the CCJ. Several years ago, Jamaica subscribed US$26 million to the CCJ's US$100-million trust fund, the returns from which the court meets its expense. By staying out of the criminal and civil jurisdiction, Jamaica is utilising only a small portion of what it pays for.

Moreover, going the whole way does not, in any substantial way, mean, as Mr Holness claims, a "further intensifying (of) our ties with CARICOM".

Jamaica is already a member of CARICOM, including its single-market arrangements, the interpretation of whose treaty the CCJ has original jurisdiction. It is that court, the CCJ sitting in its original jurisdiction, in which a Jamaican young woman, Shanique Myrie, as a citizen of CARICOM, asserted her right against the government of Barbados for fair treatment and acceptable norms when regional persons travel within the Community.

Ineffective Access

Asserting her rights as a CARICOM citizen is clearly not quite the same thing as if Ms Myrie were pursuing a criminal or civil matter in Jamaica's domestic court. But if by chance that were the case, and she wanted to test the matter in a court of last resort, it is unlikely, except she were convicted for murder and might count on pro bono representation by a London-based advocate at the English Bar, that someone of Ms Myrie's economic means could access the Privy Council. Which really means that the vast majority of Jamaicans have no effective access to a court in faraway England. They never had. They can't afford it.

Mr Holness has not raised a challenge to the quality of the jurisprudence of the CCJ, which some people attempted to do before the launch of the court, but from which they have been forced to retreat, perhaps because of shame, but certainly for the quality of the court's judgments so far.

Since there is no consequential reason for the JLP to resist the CCJ, except it needs bipartisan support for the law to get the two-thirds majority to pass in the Senate, Mr Holness should horse-trade: Tell the Government what, within reason, he will exchange for the vote to afford more Jamaicans effective access to a third level of the judiciary.