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CCJ debate without the noise (Arguments for and against retaining the Privy Council as Jamaica's final court of appeal)

Published:Sunday | January 25, 2015 | 1:00 AM

Shena Stubbs-Gibson, Contributor

While Prime Minister Portia Simpson Miller and Leader of the Opposition Andrew Holness last week waxed eloquent on the perceived virtues and evils of Jamaica adopting the Caribbean Court of Justice (the CCJ) as its final court of appeal, many Jamaicans were wondering what all the fuss was about.

This was brought home to me as I listened to Nationwide Radio's morning programme and heard caller after caller either confess to, or belie through their comments, that they had no inkling of what the issues were.

One caller said going the route of the CCJ made no sense because Shanique Myrie experienced undue delay in collecting the sum awarded to her by that court! Mercy! If the efficacy of any tribunal was to be judged solely on the length of time it often takes for judgments to be enforced, then the entire judicial system of Jamaica and many other jurisdictions would count as junk, and from its mangled heap would arise the kind of garrison justice that is oh so much more effective in the enforcement of judgments. God forbid!

Here is a simplified summary of the arguments for and against adopting the CCJ as Jamaica's final court of appeal.

Background

Like most, if not all, other Commonwealth countries, the Judicial Committee of the Privy Council was established as Jamaica's final court of appeal during the period of colonialism. With the end of the colonial period, many of the former British colonies severed ties with the English Privy Council and established their own final courts of appeal. India, Sri Lanka (Ceylon), Africa, Australia, Malaysia, Australia, Singapore, Hong Kong, for instance, have all abandoned appeals to the Privy Council in favour of establishing their own final courts of appeal. (See: Replacing the Privy Council with the Caribbean Court of Justice in the OECS Countries by Isabel C Davila.) However, in the region, save for Guyana, the Judicial Committee of the Privy Council has been retained but not without much rancour.

Arguments against retaining the Privy Council

Sovereignty: This is perhaps the major clarion call for parting ways with the Privy Council. I did note that Holness, while articulating his party's position, referred to himself as "me ... the nationalist." The reference underscores the sovereignty point. According to the former chief justice of Trinidad and Tobago, Isaac Hyatali, in Towards a West Indian Jurisprudence: "It is a compromise of sovereignty to leave that decision to a court, which is part of the former colonial hierarchy, a court in the appointment of whose members we have no say".

Lack of understanding of Caribbean dynamics and culture: The Privy Council is heavily influenced by precedents established by the English House of Lords (now Supreme Court). Many in the region view this influence as the reason judges of the Privy Council have, in recent times, in their rulings on death penalty appeals, invariably adopted an anti-death penalty stance, with the end result that the death penalty has effectively been abolished in Commonwealth Caribbean territories without legislative intervention as should have been the case.

Cost: This has also been an argument against retaining the Privy Council. All other factors being equal, could a Shanique Myrie have afforded to take her appeal to the Privy Council and to retain a bevy of English advocates at prevailing rates? As opponents of retention say, any of the two alternatives currently being advanced would be less costly than having an appeal heard in England, and additionally, may be more expeditious as the Privy Council is burdened with appeals from other Commonwealth jurisdictions.

Arguments in favour of the CCJ and a local Final Court of Appeal

The major arguments in favour of the CCJ and a Jamaican Court of Appeal would, of course, be the contrary arguments to those raised above with regard to the retention of the Privy Council, e.g., a better understanding of local dynamics, less costly, and so forth.

Additionally, the CCJ sits as an itinerant tribunal moving from one region to the other, so no member state can argue that it is left out. However, there are arguments against as well, and some of these will be explored briefly.

Arguments against the CCJ and Jamaican Final Court of Appeal

Lack of political independence: There is a fear that while the judges of the Privy Council are dispassionate about regional politics, not being residents of the Caribbean, regional judges are less likely to be so and may become polarised, serving the interests of their individual governments. However, proponents of the CCJ alternative make the point that the judges of the CCJ will be appointed by members of the legal profession, with the exception of the chief justice, and not the political directorate.

Cost: While the alternatives may be less costly to litigants to access, they will cost more to the Jamaica Government, which has to contribute to the operations of the CCJ, and a local Final Court of Appeal would have to be solely financed by the State. The Privy Council offers its cadre of judges and facilities free of cost to its former colonies.

Quality of judges: A non-argument if ever I heard one, but I will relay it nevertheless. There is also a school of thought that the Privy Council offers an unmatched cadre of high-quality learned judges, which any regional model would not be capable of matching.

To this I say, let's emancipate ourselves from mental slavery!

Shena Stubbs-Gibson is an attorney-at-Law and legal commentator. Feedback to:Email: shena.stubbs@gleanerjm.com Twitter:@shenastubbs