Adrian Saunders | Accession by Jamaica will better position CCJ to fulfil its mandate

When he was chair of The Gleaner, the late Oliver Clarke was a strong supporter of the Caribbean Court of Justice (CCJ). He understood clearly what the CCJ could do to expand access to justice for ordinary Jamaicans. The CCJ shall always remember him fondly as a true friend.

I also applaud the consistently constructive positions The Gleaner has adopted on the debate regarding this country’s possible accession to the CCJ’s appellate jurisdiction. As I demit office as President of the Court, I am pleased to accept your invitation to share a few thoughts about the Court, especially as it has been this year celebrating 20 years since its inauguration.

An isolated seed, planted by this newspaper in an editorial published in 1901, has germinated and mushroomed into a vibrant living reality that has captured the attention of both the Caribbean and the international community. The establishment of the CCJ is one of the most consequential decisions ever made by Caribbean leaders. This was a project conceived, fashioned and funded by the people of the region with the aim of advancing regional integration, democracy, and the rule of law. The project has been a huge success.

I do not at all measure that success by the fact that only five of the eleven eligible states have to date altered their Constitutions to cater for final appeals to the Court. Alteration of a national Constitution to facilitate this end is a deeply political process. Any number of variables can impinge on the making of such a momentous decision. I prefer to gauge the CCJ’s success by looking at the manner in which CARICOM states and their leaders have, individually and collectively, responded to the work and mission of their Court in its Original Jurisdiction where the Court interprets and applies the Treaty establishing the CARICOM Single Market and Economy.

HIGHEST ESTEEM

In this regard the Court is held in the highest esteem. Regional leaders have turned to the Court for and been guided by the Court’s advice on the interpretation of decisions they have made among themselves. The Member States have readily submitted themselves to the Court and have complied with its judgments even when those judgments resulted in this or that State being on the unsuccessful side of litigation. CARICOM leaders and senior government officials have carefully studied the pronouncements of the Court and, where necessary and appropriate, have tailored their domestic processes to take into account the intimations set out in the judgments of the Court. Where conciliation and amicable settlement have failed, the States have shown a readiness to launch proceedings against each other before the Court and to abide the Court’s rulings. Finally, while there is merely anecdotal evidence to support the following view, I am prepared confidently to assert that the people of each of the States that send their appeals to the CCJ are content with the court’s overall performance. In each such country there has been a tremendous increase in the number and variety of cases reaching the apex court with the result that access to justice and the rule of law itself have been favourably impacted in those States.

The Court is not fixated on more countries acceding to the Appellate Jurisdiction. Our primary focus at present is twofold: to accord to the cases that currently come before us all the skill and care we can muster and secondly, to be the best court we can be. Still, we laud and encourage the efforts of those who advocate for all eligible CARICOM member states, and Jamaica and Trinidad and Tobago in particular, to get the politics right and to accede to the Appellate Jurisdiction of a Court which they helped to establish and to fund. Those two are the most populous states in the English-speaking Caribbean. The CCJ is staffed in part by their nationals. The judges of the Court are appointed by an independent Commission that comprises persons from across the region, including of course distinguished jurists and other personnel from Jamaica and Trinidad and Tobago. My successor, Mr Justice Winston Anderson, hails from the Garden Parish of St Ann, located in the heart of Jamaica. The CCJ is just as much a Jamaican court as it is a Guyanese or Barbadian court.

BETTER POSITION THE COURT

It is undeniable that accession by Jamaica to the CCJ’s appellate jurisdiction will better position the Court to fulfil its mandate to play “a determinative role in the further development of Caribbean jurisprudence through the judicial process”. The increased volume and varied nature of the disputes that will naturally then come before the Court will galvanise the fulfilment of that role in ways that can only improve the rule of law throughout Jamaica and the entire Community.

On the other hand, the further development of Caribbean jurisprudence is a role that the Judicial Committee of the Privy Council is not best equipped to pursue. Indeed, the judges of the Privy Council have themselves not infrequently noted in their judgments that their unfamiliarity with local conditions handicaps their decision-making.

The route to accession is a matter for the Government and people of each State and it is my respectful view that de-colonisation decisions should ideally be taken by political leaders after widespread consultation with the public. It has been pleasing to note that in Jamaica there has already been long and spirited discussion about the CCJ throughout the print and electronic media and in institutions of learning. The breadth and depth of the discussion have far exceeded what obtained whether before adult suffrage was attained, or both before or after the establishment of the federal experiment, or before Jamaica’s achievement of independence in 1962. Professor Tracy Robinson has rightly noted that there have been more studies, articles, theses and books devoted to the CCJ than to any other Caribbean initiative.

Of course, there are contrary views to the idea that Jamaica should accede to the Appellate Jurisdiction, but if any country waited until all of its citizens were utterly convinced of the wisdom of any particular initiative before proceeding with it, that initiative will never be implemented. The arguments I have heard in favour of retention of the Privy Council appear to me to fall into familiar and predictable categories. They speak to fears that have no evidence to substantiate them. There is also the notion that the region’s best judges are not sufficiently competent or that they have lesser integrity than their United Kingdom counterparts or are prone to political pressures. Alternatively, that the region is incapable of maintaining a suitable institution that can match the JCPC. The facts simply do not substantiate these perceptions. The institutional architecture that supports the CCJ is second to none and superior to most. If anyone feared, in 2005, that the CCJ may not be “immune from political pressure”, now, 20 years after the Court has been operating, it is unreasonable to continue to be paralysed by such fears.

N JUSTICE SYSTEM IS PERFECT

Some detractors go out of their way to magnify admitted imperfections in the local justice sector and infer from those weaknesses what they claim can or will or might occur at the CCJ. No justice system is perfect and what is interesting is that these detractors make no similar extrapolations with respect to the Privy Council although the United Kingdom’s court system is plagued by even more serious imperfections than there are to be found in any Caribbean domestic court system. I invite readers to read The Lammy Review for a sense of the magnitude of some of the problems the UK court system faces. Yet, no one attributes to their Lordships the very serious indictment on British justice that is to be gleaned from that independent review into the treatment of, and outcomes for Black, Asian and Minority Ethnic individuals in the UK’s Criminal Justice System. For my part, there is no justification for any CARICOM state that ratified the agreement establishing the CCJ to renege on their solemn treaty obligation by neglecting to send their final appeals to the CCJ.

Throughout three decades as a Judge in the Caribbean I have had the extraordinary privilege of occasionally visiting every CARICOM state, engaging with its judges and meeting with faculty and staff of law institutions throughout the Community. I am satisfied that our finest judges are just as competent as the best anywhere else. As the CCJ goes about playing its modest role, I am confident that it will continue to serve the region well into the future, exerting an influence on and in turn being influenced by the noble work of those judges.

I demit office pleased in the knowledge that the Court is in excellent hands. I have no doubt that under President Anderson’s leadership, the CCJ will grow from strength to strength and this reciprocal influence shall endure and grow deeper and stronger down through the ages.

Justice Adrian Saunders, a native of St. Vincent and the Grenadines, is the former President of the CCJ. Send feedback to columns@gleanerjm.com