Poverty & Social Development: A Caribbean Perspective

MICHAEL DE la Bastide, the learned president of the Caribbean Court of Justice (CCJ), revealed in a lecture sponsored recently by the Caribbean Development Bank in Montego Bay, how distressed he was because the Judicial Committee of the House of Lords (The Privy Council) upheld the appeal to declare unconstitutional the three acts passed by Parliament to establish the Caribbean Court of Justice as the final court of appeal for Jamaica.

The intention of these pieces of legislation was that the CCJ replaced the Privy Council which constitutionally is Jamaica's final court of appeal. The appeal to the Privy Council was submitted in my name as the then Leader of the Opposition, the Independent Jamaica Council for Human Rights (IJCHR), Jamaicans for Justice and others.

The real basis of this historic decision by the Privy Council in February 2005, had nothing to do with depriving the CCJ of the role as the final court of appeal for Jamaica, but every thing to do with maintaining Jamaica's constitutional sovereignty. The objection of the Privy Council was based on sound judicial principles which ensure that the people must be consulted on constitutional changes which establish the CCJ as a final court of appeal to replace the Privy Council.

The effect of the Privy Council judgment is that the CCJ should enjoy the same level of security of tenure as the high courts of Jamaica.

The protection enjoyed by the Supreme Court and Court of Appeal of Jamaica is a constitutionally-entrenched security of tenure for the courts and the judges which provides that the Jamaican courts cannot be established or abolished without the approval of the people in a referendum and no judge can be removed without approval of Her Majesty the Queen in Privy Council.

NO SECURITY OF TENURE FOR CCJ

This protection is not provided for the three acts passed by Parliament to establish the CCJ as the Jamaican final court of appeal. In fact, there was no security of tenure at all for the CCJ, as the legislation was enacted by a simple majority vote leaving the way open for the court to be abolished, similarly, by a simple majority of one vote in Parliament.

This would have made it quite possible and politically easy for the court to be abolished by a displeased government, posing a constant threat to judges whether perceived or real and to the three-tier structure of our judicial system as provided for in the constitution. In this unhealthy and unacceptable situation for the dispensation of justice, this real or perceived threat would weaken the resolve of the court at the highest level.

The Privy Council surely recognised this opening for abuse when they ruled in favour of the Jamaican appeals against the unconstitutionality of the three acts of Parliament.

In so doing, the Privy Council left open the door for the possible establishment of the Caribbean Court of Justice as Jamaica's highest appellate court for those who still wish to pursue this course.

What would be required is to pass legislation which would entrench the CCJ at least to the same degree as exists for the high courts of Jamaica. This would provide that its security of tenure would be guaranteed unless otherwise decided by a two-thirds majority in each house of Parliament and by referendum in which the people voted to abolish the court. This is the same level of protection currently enjoyed by the Supreme Court and the Court of Appeal of Jamaica.

This step is not likely to be taken by the Government of Jamaica which recognises the real possibility that in a referendum, the people would reject the CCJ as a replacement for the Privy Council as the highest appellate court of Jamaica.

Such a rejection at the polls in a referendum would very likely be considered by the electorate to be a national rejection with the widest political repercussions. This is not a route which is likely to be taken by Government. Hence, the CCJ as the Jamaican final court of appeal can be considered a closed issue for political, not judicial nor constitutional reasons as the propaganda would indicate.

PRIVY COUNCIL INSULATED FROM POLITICAL INFLUENCE

The President of the CCJ, is particularly stunned by the ruling of the Privy Council which prevents its establishment as the highest appellate court by a single majority vote in Parliament, because the Jamaican Constitution provides that the Privy Council, the highest appellate court of Jamaica, can also be abolished by a single majority vote in Parliament. But despite this concurrence, there is a huge difference.

In the case of Jamaica, a real threat of vulnerability exists that abolition of the court by a single majority vote opens a real threat of political interference, while the Privy Council would be exposed to no such threat as it is outside the reach of political influence from Jamaica or elsewhere. Hence, where the Privy Council is insulated from influence or interference and needs no protection, the CCJ in the Jamaican context would most definitely have to be constitutionally protected to be acceptable.

There is another set of arguments pleaded by those who propose the CCJ as a replacement for the Privy Council. It is the underlying emotional appeal, as the president of the CCJ reminds us, that replacement of the Privy Council by the CCJ as Jamaica's final court of appeal would repatriate the last element of Jamaican sovereignty which lies in an overseas jurisdiction.

This argument provokes unkind thoughts about those who are so naïve as to fail to recognise that real sovereignty is the right of a people to make their own choices in their own best interests. There are those who in their naïvety pointedly disregard the sovereign decision of the Jamaican people that the Privy Council should continue as Jamaica's final court of appeal and this would prevail until otherwise replaced by a court which is approved by the people in a referendum.

Strangely, the same people who argue for the right to fully determine the course of Jamaican justice at home regardless of the circumstances, have readily embraced the need for foreign nationals to play pivotal roles in the protection of the national security of Jamaica at home, as has been the case in the recruitment of Scotland Yard police officers who have been appointed to top-level decision-making administrative and executive positions in the police force without derogating from Jamaican sovereignty.

The Government sought the best available skills, senior Scotland Yard police officers, to successfully assist in the fight against the problem of runaway crime in Jamaica and the people of Jamaica have constitutionally selected the best skills, the Privy Council, to ensure the availability of the finest judicial system.

Both are exercises of the sovereign will of the people of Jamaica, not enforcements by some foreign power from which we must rescue our sovereignty.

Every time reference is made to sovereignty in the circumstances of enabling or strengthening a Caribbean Community (CARICOM) institution, it is an attempt to treat CARICOM as a sovereign entity to which sovereign rights in a colonial domain can be repatriated. There is no CARICOM nation and CARICOM has no sovereign rights.

But all this hype on the restoration of sovereignty may not be in reference to CARICOM at all, but to setting the stage for the great leap forward to the creation of a federation of the CARICOM states for which all the parts have been in the process of assembly for the past three decades. Fortunately, the people are awakening to this grand design which would give them a new national citizenship and identity as 'CARICOMIANS' or 'CARICOMITES'.

I understand the feelings of disappointment expressed by President de la Bastide who was much enthused by his CARICOM colleagues when he was recruited as the intended president of a court of final appellate jurisdiction for the entire CARICOM region.

It has been an awesome embarrassment to find that only two countries, Guyana and Barbados, have agreed for the CCJ to serve their countries in this ultimate capacity, while all others have either rejected the service of the CCJ in its appellate jurisdiction or have remained in various stages of doubt.

But it is a greater embarrassment yet for the people of the region who pledged US$100 million to support a body of learned justices with little call for their justice to be dispensed, but plenty of time, adorned in robes and wigs, to sharpen their domino skills.

What a glorious expression of sovereignty!