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EDITORIAL - JLP needs clear position on CCJ

Published:Friday | June 29, 2012 | 12:00 AM

It is time for Andrew Holness to end his party's cat-and-mouse game on Jamaica's accession to the criminal and civil jurisdictions of the Caribbean Court of Justice (CCJ).

If the Jamaica Labour Party (JLP) doesn't want the court, it must assert its position with clarity, including saying why. If, however, it supports the court, but genuinely believes that the final decision on it ought to rest with the Jamaican people in a referendum, we expect to hear a commitment from the JLP to campaign for a 'yes' vote in a plebiscite.

We, however, sense that the JLP stands for neither position. It hopes, it seems, to engineer a referendum, then leverage the vote not as a test on the public's opinion on the specific matter, but the broad performance of the Government. Which is why governments are often shy of referenda.

The CCJ was conceived and established to be a final court for a number of Caribbean countries, replacing the United Kingdom-based Judicial Committee of the Privy Council.

Few courts in the world, in their governance structure, enjoy the CCJ's depth of insulation from potential political interference. Doubts about the quality of a regional court, which should never have been harboured, have long been put to rest.

Indeed, it was to this position that Bruce Golding, then the prime minister and JLP leader, appeared to have arrived 18 months ago in the face of a complaint from the UK's top judge that his justices were spending too much time on Privy Council cases at the expense of domestic ones.

Backing away from his party's formerly hard opposition to the CCJ - which was the basis of its moral leadership of a constitutional challenge to the manner in which the CCJ was being established as Jamaica's final court - Mr Golding said: "We have to dispense with the Privy Council."

He canvassed the possibility of a Jamaican final court, but that was deemed by many as part of a measured face-saving retreat. Mr Andrew Holness, Mr Golding's successor, appeared, prior to last December's general election, to have adopted a softer stance on the court.

Querying constitutionality

Recently, though, the opposition leader and his shadow justice minister, Delroy Chuck, have adopted a tougher tone on the CCJ and their interpretation of the Privy Council's ruling of the constitutional route for it to be our final court. The law lords held that to amend the Constitution to institute the CCJ as a superior court to the Court of Appeal would require that it be similarly entrenched.

On the face of it, this merely requires the passage of the bill with two-thirds majority of all parliamentarians. But Mr Chuck insists that securing the entrenchment of the CCJ would mean amending - thus requiring a referendum - of the deeply entrenched Section 49 of the Constitution, which sets out the processes by which constitutional amendments are achieved.

Essentially, the change to Section 49 would be to list the clause covering the CCJ among those subject to its cover. There are, however, those who believe that the same effect can be achieved differently: for instance, by indicating in the new CCJ clause that any future amendments to it would be subject to Section 49.

In Jamaica's 50th year of Independence, the issue of a final court should be a matter of mature discourse, not a scramble for political advantage.

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