July 08, 2012

JLP's CCJ position is constant - News - Jamaica Gleaner - Sunday | July 8, 2012

JLP's CCJ position is constant - News - Jamaica Gleaner - Sunday | July 8, 2012

The Jamaica Labour Party (JLP) has high regard for The Gleaner and consistently takes careful note of the editorial opinions expressed. It is then with surprise that we read The Gleaner's editorial of June 29 titled 'JLP needs clear position on CCJ'.

It reads, in part: "... 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)." And continues, "If the Jamaica Labour Party 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."

A cursory look at The Gleaner archives will reveal the consistency of the JLP's position on the CCJ through Edward Seaga, Bruce Golding and now Andrew Holness and myself.

The evidence shows that on December 4, 2000, The Gleaner published an article titled 'Forget the CCJ - Seaga urges Gov't to focus on economy, education, crime'. In that said article, Mr Seaga, who was leader of the JLP and the Opposition at the time, stated:
"Is the establishment of a Caribbean Court an issue deliberately promoted by Government to sidetrack our attention from the real issues of crime, education and the economy which are real priorities?" he asked. He called on the Government to "let the people speak in a referendum now".
He continued: "We do not want a court which can be influenced by Mr (P.J.) Patterson, but one that can be influenced only by justice." He added that it was a "reflection itself of the injustice of which Mr Patterson's Government is capable that he will not allow the people to voice their own position on this vital issue in a referendum".
This position is no different from that of the current JLP leader, Andrew Holness, who in his contribution to the Budget Debate stated: "Right now, the only focus of any government is to get our debt down, get our revenues up, get growth going, provide education for our people; that is the sole focus now of any government."

That could be considered JLP position number one: focus on the economy.

Mr Seaga's position was further restated in his response to the PNP Government's resistance to the idea of a referendum. In a Gleaner story on May 18, 2003 titled 'Allow the people to decide - Seaga', Mr Seaga was quoted as saying:

"In my term as prime minister, I took many decisions that were unfavourable to my party but which I knew were in the best interest ... were important to the survival of the country," Mr Seaga said. "It should not be that the prime minister is afraid to lose out in a referendum ... . It should be about giving the people the opportunity to choose (their) final court of appeal ... to allow them to choose the type of justice they want ... . This is a fundamental right."

So the JLP's position that the court must only be established as Jamaica's final appellate court through referendum is not new.

This position was not only articulated by Mr Seaga but also by Mr Golding. In another Gleaner story on May 13, 2003 titled 'JLP to vote for CCJ if referendum is allowed, says Golding', Mr Golding stated in a context that the JLP will support the CCJ if the Patterson Government at the time committed to calling a referendum on the matter:

Not holding back

"Give us the undertaking that if we vote with you, you will do a referendum," Mr Golding challenged. "I would never want to give you the impression that we are holding back. I can speak for this side ... . I think I can speak for the entire Jamaica Labour Party (JLP) ... that we will support you, if, before the court convenes its first sitting, the people's view will be sought."

This same position has been clearly articulated by me on occasions too numerous to mention.

In 2005, Mr Golding went even further. The Gleaner of July 4 reported that: "Speaking at a press conference in St Lucia following a meeting between CARICOM prime ministers and opposition leaders, Golding used the platform to call for referendums in CARICOM member states to decide the fates of the Caribbean Court of Justice (CCJ) as the final appellate court and the CARICOM Single Market and Economy (CSME)."

Mr Golding, while prime minister, maintained the referendum position throughout his Government's tenure.

Over the last decade, the JLP's position has been that in order for the CCJ to have full protection under the Constitution of Jamaica, a mere two-thirds majority is not enough.

This position is not new and was also proffered by current leader of government business in the Senate and former attorney general and justice minister, A.J. Nicholson. In The Gleaner of January 29, 2000, in a news story titled 'Gov't would go for CCJ entrenchment':

"It may be eminently desirable that the court be entrenched. If all parties and stakeholders agree on that question, then the Constitution requires that a referendum be held. This is so because the amendment section of the Constitution (Section 49) would itself have to be amended and it can be amended only by a process of referendum."

Not only does Mr Nicholson, in his former self, agree with the JLP's position, but he also explains why the JLP's position is legally sound and preferable. It is interesting that in Senator Nicholson's eyes, that position is no longer "eminently desirable".

Section 49 of the Jamaica Constitution would afford the CCJ the protection it needs from the whims and fancies of any future prime minister or government. Additionally, abolishing the right of a person to seek appeals to the  Privy Council should not be left to the determination of politicians, but to the people.

A referendum on the CCJ would not only give the people a chance to choose but would concurrently present the opportunity for all stakeholders to educate their various constituencies on the issues related to the establishment of the court for Jamaica. This would be a mass education effort that will benefit the nation as a whole and create greater awareness of the justice system not only at the local level but also at the appellate level.

It is sad that the PNP, a party that advocates people power, would evolve to the position that the people should not be given the ultimate power of choosing their way.
The JLP's position is by no means a comment on Caribbean jurisprudence. We are not in support of the CCJ being used as a political mirage to hide the real issues that face the nation. As a nation we must focus on the grave challenges that face us.

We say if the nation wants the CCJ as its final appellate court, let the nation decide in a referendum. Anything less would be a comment on the confidence we, as a nation, have in our democracy.
Delroy Chuck is opposition spokesperson on national security and justice. Email feedback to columns@gleanerjm.com and delchuck@yahoo.com.

July 03, 2012

Jamaica Must Get On Board CCJ - In Focus - Jamaica Gleaner - Sunday | July 1, 2012

Byron Buckley, Contributor

WHILE THE Government and Opposition wrangle over Jamaica adopting the Caribbean Court of Justice (CCJ) as the country's final appellate court, the regional tribunal has been quietly impacting the lives of ordinary citizens across the  Caribbean Community (CARICOM).

The CCJ has been hearing appeal cases in Guyana, Belize and Barbados, which have chosen it as their final appellate court. In addition to appeal cases, the CCJ has also heard trade or treaty-related cases under the CARICOM Single Market and Economy (CSME) agreement. One such case relates to Shanique Myrie, the Jamaican woman who allegedly endured a humiliating body search by Barbadian border-control personnel last year.

How this case is handled by the Trinidad-based CCJ, could help in removing doubts in the minds of many Jamaicans, about its competence and suitability to also function as the country's final appellate court. This role is now being performed by the United Kingdom-based Privy Council .

But Government and Opposition are in disagreement about the means by which Jamaica should replace the Privy Council with the CCJ. The Simpson Miller administration wants to go this route, which requires the consent of two-thirds of the membership in the Lower and Upper Houses of Parliament.


On the other hand, the Andrew Holness-led Opposition contends that the decision to replace the Privy Council with the CCJ should go ahead only through the people's assent in a referendum.

However, abolishing appeals to the Privy Council does not require a plebiscite under the Jamaican Constitution, as the Privy Council is not a deeply entrenched provision. The Opposition's contention seems to surround whether there is public confidence in the CCJ as a suitable replacement for the British tribunal.

Whatever views have been proferred, it appears that the Opposition has no confidence in the CCJ and would likely campaign against it in a referendum. This runs the risk of politicising the issue, prompting people to vote along party lines.

However, Delroy Chuck, the shadow justice minister, told this newspaper last Thursday that the Opposition has no reservations against the CCJ but wants public approval in a referendum. But those comments come into conflict with Holness' recent call to defer talk of the CCJ and to focus, instead, on improving court infrastructure and reducing case backlogs in Jamaica.

Of course, there are lingering doubts among some Jamaicans as to whether the CCJ can deliver a brand of justice that is fair and immune to political interference. But the justices of the CCJ are distinguished and professional jurists, not political apologists. The court's performance, since its establisment in April 2005, should serve to increase the confidence of doubters in Jamaica.

Indeed, the Shanique Myrie case provides a perfect opportunity for all Jamaicans to observe the regional court at work and determine its competence. The case is unique in the sense that the CCJ is reviewing it on the grounds that it is a treaty-related matter, as opposed to a criminal, civil or constitutional appeal case.

Under the CSME agreement, as provided in the Revised Treaty of Chaguaramas, Jamaican citizens are entitled to travel freely to member states. Ms Myrie is contending that her right of freedom of movement was violated by Barbadian immigration personnel when she was searched, detained, and returned, against her will, to Jamaica - without any legitimate cause.

Although the justices of the CCJ are reviewing this case as an original jurisdiction or treaty matter, this will serve as a study in the operation of the court, and signal to Jamaica whether it should also sign on to the appellate jurisdiction of the CCJ.

While Jamaicans have not been sending appeal cases to the CCJ, other CARICOM nationals have been utilising the tribunal. Among these are two women (one very elderly) from Guyana, who had a long-running dispute about the right to occupy a condominium. With Guyana having no second-tier appellate court, having abolished appeals to the Privy Council decades ago, the women seized the opportunity to bring their case, Elizabeth Ross v Coreen Sinclair (2008), before the CCJ.

The court heard the matter, with two Guyanese attorneys representing the women without charging a fee. The women never had to travel to Trinidad, as they gave witness via videoconferencing equipment that the CCJ has installed in courts of member states that never had them.

"Ordinary folk now have additional scope and opportunity to be heard and to obtain justice," notes CCJ President Sir Dennis Byron. This contrasts with the distance of the Privy Council in England and the related costs of legal representation. In terms of access, the CCJ has the option to sit in different countries, as it has done in Barbados.

It should be noted that, so far, the CCJ has received more civil cases than total criminal and constitutional matters combined. This shows that there are relatively fewer cases involving the government - a reversal of what obtains in countries without the CCJ. Justice Byron, who met with journalists from the region in Port-of-Spain last week, underscores the point that civil cases heard by the CCJ are not limited to wealthy people or corporate entities.

So, the CCJ is bringing justice in the reach of ordinary citizens, as opposed to the current arrangement in territories like Jamaica where final appeals are made to the London-based Privy Council.

Although Jamaica has not yet signed on to the appellate jurisdiction of the CCJ, local lawyers - as well as judges - have been benefiting from the Caribbean case law or jurisprudence being developed by the rulings of the regional court. Indeed, Jamaican lawyers have been developing their professional skills by appearing before the CCJ. So, like it or not, Jamaica has already begun to benefit - directly or indirectly - from the operation of the CCJ.

In the meantime, the CCJ and the entire region anticipate benefiting from the "intellectual nourishment", that Jamaica's full participation in the court would bring, according to the CCJ president.

Debate in the region about the need to replace the UK-based Privy Council first began in Jamaica by way of a Gleaner editorial in March 1901. Surely, a century is more than adequate time to contemplate this issue - in the face of continuous prompting by the post-colonial power.
After 50 years of Independence, it's time for the doubters to get on board.

CCJ facts
Between July 2005 and June 22, 2012, the CCJ received 94 appeal cases from Barbados, Guyana and Belize, combined. For the same period, 12 treaty-related matters have been filed with the court, with 10 already adjudicated.  Legal representation in appellate cases involves 45 senior counsel and 130 junior counsel.