Editorial | Get aboard CCJ

For many people, it was likely to have been an embarrassing feature of this week’s Caribbean Community (CARICOM) summit in Montego Bay that Winston Anderson, a Jamaican, was administered his oath of office as president of the Caribbean Court of Justice by the island’s governor general, Sir Patrick Allen, in the presence of Prime Minister Andrew Holness, whose administration remains opaque to the country’s accession to the civil and criminal jurisdiction of the regional court.

It is a situation that Dr Holness should correct before the general election due by September, so that it becomes a subject of serious discussions during the ongoing campaign, and thus bring clarity to either party’s – the governing Jamaica Labour Party and the People’s National Party – position on the issue.

This ought not to be a burdensome political imposition on Dr Holness, or to be seen as such, for it is something that his legal and constitutional affairs minister, Marlene Malahoo Forte, promised two years ago that he would address “in short order”.

In any event, the status of the island’s apex court is a critical element in Jamaica’s constitutional reform process, which shouldn’t be decoupled from, or cause to lag behind removing the British monarch, King Charles, as Jamaica’s head of state. Indeed, the government maintains an ongoing public relations/education campaign in its intention to transition Jamaica from a monarch to a republic in the near term.

However, Jamaica’s existing constitutional mechanisms would make accession to the criminal and civil jurisdictions of the CCJ far easier to achieve than decoupling from the monarchy, and is something which the PNP, which is supportive, and the JLP, should commit to implementing in the immediate aftermath of the election.

That should be followed soon afterwards by the transition to a republic, once there is national consensus on the arrangements for selecting an executive, on which there is already agreement.

POWERFUL AND REPUGNANT REMNANT

At present, Jamaica’s final court is the Judicial Committee of the Privy Council (JCPC), a London-based body that, technically, is a legal adjudicating arm within the King’s council of advisers.

Theoretically, therefore, while the judges who preside over the JCPC are the same ones who sit on the UK’s Supreme court, when a Jamaican lodges an appeal to the Privy Council, it is a prayer to the King, executed by his advisers.

Not only is this a powerful and repugnant remnant of Britain’s colonial authority, but the JCPC is far removed and inaccessible to large swathes of Jamaicans – in distance, psychologically and economically.

The court sits in the UK where Jamaicans have no right of entry, by treaty or otherwise. Litigants before the court have no guarantee of being granted an expensive visa to enter Britain. Engaging British lawyers to appear before the court isn’t cheap. Neither is sending one from Jamaica an inexpensive venture. In the circumstances, it is hardly surprising that only a handful of appeals from Jamaica are annually heard by the Privy Council, and that these are matters mostly involving corporations or well-heeled individuals, except for murder convictions where British lawyers may handle the cases pro bono.

Moreover, until recently, the pathway for the Privy Council to invite judges from the jurisdictions from which it hears cases, was exceedingly narrow. So the adjudicators are jurists who are largely removed from the nuances of the cultural and social mores of the societies to which their rulings apply.

The CCJ is a product of an agreement between the members of CARICOM, a trade and cooperation group that is working at evolving into a single market and economy. In its original jurisdiction, the court resolves disputes over the interpretation of the CARICOM treaty, in which respect Jamaica is fully signed-up.

RESOUNDING TESTAMENT

However, Mr Holness’ JLP hasn’t embraced the court’s civil and criminal jurisdiction, although it was among the earliest proponents of a regional court. During the CCJ’s early construction there was apparent wariness over its independence and sustainability. CCJ, though, is among the world’s most insulated courts, both in terms of the system for selecting judges and its financing – via a trust fund that was originally seeded by regional governments.

The basis of Mr Holness’ continued reticence isn’t clear, but the Jamaican constitution provides an easy pathway for leaving the CCJ, and a relatively simple one for accession to the CCJ.

Parliament, by simple majority, could abolish appeals to the Privy Council, thus leaving the island’s Court of Appeal as the final court. But instituting a court above the Court of Appeal would require similar entrenchment, meaning that it has to be passed with a two-thirds majority in either house of Parliament – a difficulty in the Senate unless at least one opposition member votes in favour. However, it doesn’t require a referendum as with removing the monarchy.

The Government has suggested that it will hold an indicative referendum on the CCJ, but hasn’t indicated how it might advise its supporters to vote.

This newspaper, however, supports, as Barbados’ prime minister Mia Mottley urged her CARICOM colleagues in Montego Bay, an urgent, uncomplicated accession to the CCJ. Not only has the court displayed exemplary independence over its two decades of operation, but the stellar quality of its jurisprudence has been globally remarked on.

With Justice Anderson as its fourth president, we believe the court remains on a path of deepening excellence.

As Sir Patrick said on Sunday, Justice Anderson’s elevation was “a resounding testament to our regional confidence in our own talents, values and ability to lead on the world stage”.