Editorial | Celebrating Justice Anderson

Jamaicans have cause to celebrate Winston Anderson’s elevation to the presidency of the Caribbean Court of Justice (CCJ) – a decision to which Prime Minister Dr Andrew Holness was party.

Highly respected as an academic and jurist, Justice Anderson is a Jamaican, one of two among the CCJ’s seven justices. The other is Chantal Ononaiwu, who was appointed to the court last year, having previously worked at the Caribbean Community (CARICOM) secretariat.

Justice Anderson’s imminent accession to the CCJ’s top job – which he will formally assume in July with the retirement of the incumbent president, Adrian Saunders – is a reminder that Jamaica has unfinished business with respect to its relationship with the court, which we expect Prime Minister Holness to address in his contribution to the Budget Debate on March 20. If not before.

More specifically, the prime minister must bring clarity to his and his government’s position on acceding to the civil and criminal jurisdiction of the CCJ in the context of the stymied constitutional reform process.

Essentially, the CCJ is two courts in one. In its original jurisdiction, it is an international court that interprets the Revised Treaty of Chaguaramas, which establishes the Caribbean Community as a single market and economy. With respect to that jurisdiction, the CCJ decisions are binding on Jamaica, which is a member of CARICOM.

In its appellate jurisdiction, the CCJ is the apex court for five Caribbean countries: Barbados, Belize, Dominica, Guyana and Saint Lucia. Jamaica is among the countries that continue to send criminal and civil appeals to the UK-based Judicial Committee of the Privy Council.

BLOCKED ACCESSION

When it was in opposition, Dr Holness’ Jamaica Labour Party (JLP) blocked the island’s accession to the CCJ by denying the then government even the single opposition senate vote that would be needed to meet the two-thirds majority to amend the relevant section of the constitution.

There has been no clarity on the reasons for the government’s opposition to the CCJ. But the issue has been brought into sharp relief with the administration’s recent efforts at constitutional reform, to remove the British king as Jamaica’s head of state and make the island a republic with a non-executive president. The Government has said that it would deal with the matter of the island’s final court in a second phase of constitutional reform.

However, the political Opposition has insisted that becoming a republic and settlement on the final court should happen at the same time. There was little sense they, and others including this newspaper, have argued, in ditching the king yet retaining the king’s court.

Leaving the monarchy, which requires amending deeply entrenched constitutional clauses, will, in addition to approval by two-third majorities in both houses of Parliament, have to be endorsed in a referendum.

Joining the CCJ or creating a new court in the Privy Council’s stead wouldn’t require a referendum. Indeed, based on a Privy Council ruling, Jamaica’s Parliament could readily vote to abolish appeals to the Privy Council, leaving the island’s Court of Appeal as its final court. That wouldn’t require the two-thirds majority needed to entrench a new court with superior jurisdiction to the Court of Appeal.

HOLD REFERENDUM

The Government has in the past said that it would hold a referendum on Jamaica’s final court, a position it recently appeared to reaffirm in its Throne Speech declaration that Jamaicans would be given a say in determining the final court. These issues, though, are unlikely to advance in any conclusive fashion until after the general election that is constitutionally due by September.

Nonetheless, while the Opposition is in favour of the CCJ, which in a 2023 poll had the clear backing of nearly six in 10 Jamaicans, the administration hasn’t said what its preference is for a final court.

Justice Anderson’s promotion reminds that this is an outstanding question.

If there were any doubts about the quality of the jurisprudence that would flow from the CCJ, the court’s decisions over the decade and half should have put to rest those fears. And, as Prime Minister Holness would know, given the seat he occupies, there are few courts in the world, if any, that are as insulated from political interference as the CCJ.