Unfinished Business with the CCJ

Source: Jamaica Observer

Published June 29, 2009

We don't know if Prime Minister Bruce Golding is privy to the content of a speech delivered last week by Sir Shridath Ramphal, the Guyanese former secretary general of the Commonwealth, at the inaugural conference of the Caribbean Association of Judicial Officers in Port-of-Spain.

Should the PM be, Sir Shridath's remarks ought to have reminded him that whatever else may be on his regional agenda, there is unfinished business with regard to justice and Jamaica's relationship with the Caribbean Community (CARICOM), to which his administration has to attend. For, we sense an absence of clarity on the part of Mr Golding and his Jamaica Labour Party (JLP), in its current configuration, on the Caribbean Court of Justice (CCJ).

Jamaica, we would remind, is one of the signatories to the treaty establishing the court. The US$27 million it put up to seed a trust fund to finance the CCJ represented over quarter of the US$100 million that established the account.

Jurisdictions participation

Yet, Jamaica does not participate in the court in its criminal or civil jurisdictions, although it embraces its authority in its original jurisdiction -that is, as the interpreter of the provisions of the Revised Treaty of Chaguaramas, the treaty that establishes CARICOM as a single market and economy.

The CCJ, from contemplation to inception, has been dogged, especially in Jamaica, by pragmatic questions of economics, overlaid with suspicion and political cynicism. It was juridically cheaper, and jurisprudentially safer, the CCJ's critics insisted, to maintain the Privy Council, based in London, as Jamaica's court of last resort, rather than being part of a Caribbean court, headquartered in Trinidad and Tobago.

The question of the independence and likely jurisprudential competence of the CCJ found expression, in Jamaica's case, in a legal challenge, by the JLP and others, to the constitutionality of its establishment. That challenge was upheld by the Privy Council.

Act of Parliament

The law lords held that while the Jamaican legislators, by a simple act of Parliament, could remove the unentrenched Privy Council as the island's final court, it could not similarly replace it with the CCJ. For the CCJ to be a superior court to the entrenched Jamaica Appeal Court, the Privy Council ruled, the law establishing the CCJ would have to be passed by two-thirds majority and then underpinned by a referendum.

The Privy Council's decision in the Jamaica case has constrained other countries with constitutional provisions similar to Jamaica's from proceeding to full entry into the CCJ. Only Barbados and Guyana have the CCJ as their final court for criminal and civil matters, a fact on which Sir Shridath commented.

"I am frankly ashamed when I see the small list of Commonwealth countries that still cling to that jurisdiction - a list dominated by the Caribbean," he said.

The question for Mr Golding, who was not the leader of his party at the time of the CCJ debate, is whether his party and government, having watched the performance of the CCJ for more than two years, adhere to the position that it was a bad philosophical and economic investment. After all, US$27 million is a lot of money, which Mr Golding may want to get back - at least some of it.

In any event, it is a time for a serious, balanced, non-hectoring discourse on Jamaica's place in the CCJ.