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".

referendum

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.

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

IS A REFERENDUM NECESSARY?

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.

CCJ AT WORK

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.

Jamaica may dump British appeals court

Jamaica may dump British appeals court - New York Amsterdam News: Caribbean:

There is every indication that the Caribbean trade bloc nation of Jamaica will shortly dump the British Privy Council as its final court of appeal and switch to the Caribbean Court of Justice (CCJ), even as the island’s main opposition party continues to be ambivalent about this bold step.

While in government before losing the late December 2011 general elections to Portia Simpson-Miller’s People’s National Party, the Jamaica Labor Party (JLP) appeared to reverse its traditional opposition to the CCJ. Recent noises from its leader, Andrew Holness, are pointing in the other direction.

But as the island prepares to observe 50 years of independence from Britain on Aug. 6, government officials have been forced to go on the defensive to refute the JLP’s claims that a referendum is needed to effect the change. If adopted, criminal and civil appeals would be heard by the Trinidad-based CCJ, either at its home base or where a case is being heard when judges decide to temporarily take the court to a territorial jurisdiction.

Foreign Minister A.J. Nicholson argued that none of Britain’s former colonies, including Canada, Australia, New Zealand and Belize, which have all delinked from the British court in recent years, used costly referendums, so the cabinet is at a loss as to why the JLP has been demanding that one be held to bless the move.

Nicholson contended this week in an official government bulletin on the issue that the opposition and others pushing for a referendum just months after the December general elections “wish for Jamaica to go where all others before us have feared to tread,” noting, “A referendum is, in essence, a general election, with a political campaign being the axis on which it spins. No country within the Westminster system of government has wished that matters relating to its judiciary be subjected or exposed to the political hustings.”

Set up in 2005 by Caribbean governments, the CCJ has struggled to attract members from the 15 nations in the community, with only Guyana, Belize and Barbados signing on to its civil and criminal appeals component, triggering criticisms about judges having too little to do. The constitutions of many Caribbean countries demand referendums and up to a two-thirds parliamentary vote in favor of delinking from the court, but recent research has shown that a divorce agreement with the court might well suffice instead of a costly and divisive referendum.

Trinidad, where the CCJ is based, which, ironically, is not a member, has also signaled its plans to join. The oil- and gas-rich twin island republic with Tobago will also celebrate 50 years of independence in late August and, like Jamaica, thinks the time has come to cement its sovereignty by subscribing to a regional court rather than leaving decisions to judges nearly 5,000 miles away.

Trinidad and Tobago Prime Minister Kamla Persad-Bissessar and Simpson-Miller, the only two women heads of government in the regional bloc, jointly announced their plans to come on board after an extensive discussion in Suriname in March.

 

Source:  2012 New York Amsterdam News.

Myrie v Barbados government has first mention in CCJ

Published by Jamaica Gleaner Online

February 17, 2012

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by Barbara Gayle, Staff Reporter

The case brought by Jamaican Shanique Myrie against the Barbadian government had its first hearing yesterday in the Caribbean Court of Justice.

The hearing, which was in the form of a case-management conference, was done by way of video link from the Supreme Court.

Myrie is accusing Barbadian officials of a cruel and vulgar cavity search at the Grantley Adams International Airport in Barbados on March 14 last year.

The case-management conference was held to ensure that all the relevant documents were filed and to determine the way the hearing should proceed.

A date was not set for the next hearing but it was reported that it is likely to to take place in April.

Justice Adrian Saunders, Justice Jacob Wit and Justice Winston Anderson from the Caribbean Court of Justice presided from Trinidad at yesterday's hearing.

Myrie is being represented by Jamaican attorneys Michelle Brown and Marc Ramsay.

Jamaica is the contracting party and was represented by attorneys-at-law Kathy-Ann Brown and Alicia Reid from the Attorney General's Department.

First before ccj

The case is said to be the first of its kind before the CCJ which is being asked to determine a critical issue which will be used as a precedent.

Myrie, 22, wants the CCJ to determine what is the minimum standard of treatment to be given to CARICOM nationals moving within the region under the Revised Treaty of Chaguaramas and its goal of hassle-free travel.

Myrie is alleging that degrading treatment was meted out to her at the hands of Barbadian border officials at the airport.

Myrie's lawyers had allowed time for both the Jamaican and the Barbadian governments to attempt to settle the issue.

However, when a settlement was not reached, Myrie's lawyers obtained leave from the Jamaican Government to file the action.

Simpson Miller daring to take Jamaica in different direction

Source: Toronto Star

January 15, 2012

Last month, in an otherwise ordinary election debate, Jamaica’s candidates for prime minister were asked whether they agree with former prime minister Bruce Golding’s infamous stance against having openly gay people in his cabinet.

After then prime minister Andrew Holness of the Jamaican Labour Party hedged on the question, opposition leader Portia Simpson Miller gave an answer previously unthinkable for a Jamaican prime ministerial candidate.

“I do not support the position of the former prime minister, because people should be appointed to positions based on their ability to manage and to lead,” she said. “No one should be discriminated against because of their sexual orientation.”

Simpson Miller also called for a conscience vote in parliament on Jamaica’s “buggery laws,” which criminalize male homosexual acts.

The unprecedented comments stunned observers, created a firestorm and brought LGBT rights — long a sensitive issue in a country with a reputation for homophobia — to the forefront of the election.

Clive Mullings, the energy minister under the JLP, warned that “God brought down fire and brimstone on Sodom and Gomorrah.” He was not re-elected. Another JLP member openly mused whether international gay rights organizations were funding the PNP’s campaign.

Some observers predicted Simpson Miller’s stance would spell her demise in the Dec. 29 election. But despite polls that showed the two parties neck and neck, her People’s National Party coasted to victory, collecting 41 seats to the JLP’s 22. The result made the conservative JLP the first one-term administration in the island nation’s modern history.

“It showed how courageous she is,” said Glenda Simms, a renowned feminist who has been an adviser to Simpson Miller. “She knew they could turn it around against her, and they tried. … But she’s not prepared to be a part of that history of discrimination. … She’s going to do whatever she can to break it.”

Simpson Miller, 66, is turning heads by taking aggressive stances on sometimes contentious issues, occasionally going against her own party. (The gay rights issue was not a part of their platform.)

The woman many Jamaicans refer to as “Sista P” has said she intends for Jamaica to jettison the monarchy and become a republic, taking its final — if symbolic — step toward independence. The country celebrates 50 years of independence from Britain in August.

At her swearing-in ceremony on Jan. 5, Simpson Miller argued the Caribbean Court of Justice(CCJ) should be Jamaica’s final court of appeal. It would replace the judicial committee of the Privy Council, a reconstituted panel of judges from the British supreme court. The Trinidad-based CCJ has been underused because Jamaica, Trinidad and others haven’t adopted it.

Holness, 39, called the general election in early December only weeks after being sworn in as prime minister. He took the job after his predecessor Bruce Golding resigned over the handling of the so-called “Dudus affair.”

After spending months fighting gang leader Christopher “Dudus” Coke’s extradition to New York on drug trafficking charges, Golding’s administration bowed to U.S. pressure in May 2010 and sent police and the military into his Kingston compound to take him into custody. The ensuing gun battle caused 73 civilian deaths, and the JLP was widely condemned.

Experts said voter outrage over the Dudus affair and concerns about the economy trumped other issues. Meanwhile, Simpson Miller’s comments about LGBT rights are resonating with the public.

“People have taken it as a signal from the prime minister that there is a new era, a new attitude that needs to be embraced,” said Ivelaw Lloyd Griffith, a political science professor at York College of the City University of New York and an expert in Caribbean politics.

Simpson Miller was Jamaica’s prime minister from March 2006 to September 2007. She won the job in an internal party vote when her predecessor P.J. Patterson retired. She narrowly lost her 2007 re-election bid and became leader of the opposition.

She was born in the rural town of Wood Hall in St. Catherine Parish and was first elected to parliament in 1976 with the PNP. She has served in various cabinet positions since 1989.

Glenda Simms was president of the Canadian Advisory Council on the Status of Women in 1996 when Simpson Miller, then minister of labour, social security and sport, asked her to return to Jamaica to head the country’s Bureau of Women’s Affairs.

Simms returned, impressed by Simpson Miller as “someone who really wanted to make a difference.”

Simms remembers accompanying Simpson Miller to see people in a fire-ravaged inner-city neighbourhood and thinking she was destined to be prime minister one day.

“I thought: ‘This is the kind of leader that everyone needs.’ She listened, she understood their lives and she did not distance herself from them.”

But Simpson Miller, whose campaign emphasized job creation, might have to resort to tough fiscal austerity measures to get her country’s stagnant economy on track. Jamaica is saddled with a public debt load of more than 120 per cent of its GDP — one of the world’s largest debt-to-GDP ratios. The island’s unemployment rate is 12.9 per cent, up from 9.8 per cent in 2007.

Its agreement with the International Monetary Fund, which supplied it with $1.27 billion in 2010, expires in May and must be renegotiated. Those talks, though difficult, appear to be an administration priority: Finance Minister Peter Phillips is due to meet with an IMF team next week.

Simpson Miller’s election continues an anti-incumbent trend in the region. St. Lucia’s ruling party was voted out earlier in the year, and Guyana’s longtime governing party lost significant legislative ground.

It’s a sign that the region’s voters — usually fiercely loyal to one party or another — are feeling less attached, Griffith said. “People are rethinking how they should do their voting and whether they should vote at all.”

Despite the lopsided seat count, Simpson Miller was not elected on a groundswell of public support. The 53 per cent voter turnout is Jamaica’s lowest ever for a general election except that in 1983, when the PNP boycotted the vote. The country’s voter turnout hovered around 85 per cent in the 1980s.

Alissa Trotz, director of the Caribbean studies program at the University of Toronto, said the result shows an overall disaffection with the political process in Jamaica. She said she hopes the PNP recognizes its 41 seats don’t overwhelmingly translate to a majority mandate, given the low turnout.

“It presents Portia with the challenge of reaching across the aisle,” she said.

But Simpson Miller may not always find a willing partner on the other side. In his concession speech on election night, Holness declared, “Our campaign for the next government starts tomorrow.”

Privy Council does cost something

by Jeffrey Foreman, Contributor

Source: Jamaica Gleaner

I respond to one aspect of the arguments advanced by Robert Collie in his article 'Use CCJ funding to improve our own courts', published Thursday, January 5.

While no direct cost to maintain the Privy Council is incurred by the Government of Jamaica , there is a cost attached to accessing the court which would either be lessened or not exist at all if the Caribbean Court of Justice were our final court. In this regard, I speak of the cost to taxpayers of having to pay for counsel in the UK or, alternatively, airfare, accommodation and other expenses for anyone travelling to argue before Their Lordships.

Such expenses would clearly be significantly less if the same individuals travelled next door to Trinidad. Moreover, these costs would be eliminated whenever the CCJ, executing part of its role as a roving court, has sittings in Jamaica. To this latter point must be added to the mix the fact that teleconferencing equipment has been installed in all signatory states so that, even if the CCJ was sitting in Trinidad, no government official need pack a single bag to go anywhere.

Individual financial burden

Those same costs faced by the government have to be borne by individuals. It almost need not be said but, whereas the state, even a cash-strapped one like ours, can always allocate funds or raise taxes or borrow to meet its obligations, in this case legal ones, an individual does not have the same latitude.

One can therefore conclude that the cost of accessing the Privy Council must serve as deterrence to any Jamaican who is of the view that justice has not been done at the level of the Court of Appeal. Indeed, most cases from Jamaica involve the State (criminal or constitutional matters), wealthy individuals, or big companies.

In contrast, the trend so far for the CCJ is that more civil cases are being heard by that court. This fact was highlighted by Sir Dennis Byron, president of the CCJ, in a speech titled 'The CCJ and its Integral Role In Development Of Caribbean Jurisprudence', at a lecture hosted by the UWI Cave Hill Law Society in November 2011.

In that same speech, Sir Dennis noted that the court has heard a number of civil appeals in forma pauperis under Rule 10.6 of the CCJ rules.

The cost attached to accessing the Privy Council has the effect of keeping ordinary individuals away from the highest rungs of justice. Indeed, as has been pointed out in many fora, limited access also means that the development of our jurisprudence is restricted to criminal matters and those affecting moneyed interests.

Lastly, I would like to counter the argument being implied by Mr Collie that the money spent to honour our treaty obligations has been wasted on a court which does not help to improve the administration of justice in the country.

In addition to providing the teleconferencing equipment men-tioned earlier, the CCJ, through strengthening the work of Caribbean Association of Judicial Officers, the Caribbean Academy for Law and Court Administration, and the Caribbean Court Technology Users, enhances the administration and delivery of justice in Jamaica and throughout our region.

If, as Justinian noted, "Justice is the constant and perpetual wish to render to everyone his due," most Jamaicans will have to satisfy themselves with a placard-bearing type of justice, for it is all they will be able to afford with the Privy Council as our final court.

Jeffrey H. Foreman is a student in the Faculty of Law, UWI, Cave Hill

Use CCJ funding to improve our own courts

Source: Jamaica Gleaner - January 5, 2012

I have noticed the stream of letters in your newspaper and elsewhere attesting to the 'need' for the Caribbean Court of Justice (CCJ). Here are a few facts that may be worth swallowing before the CCJ crowd jumps up and down and trumpets victory:

1 Currently, the Government of Jamaica spends US$3.07 million per annum to maintain this court. We are the biggest financial contributor to a court that was not chosen by the Jamaican people.

2 Currently, the Government of Jamaica spends US$0 to maintain the Privy Council.

3 Trinidad and Tobago, the country that currently hosts the CCJ, has given all indications that it has no intention of joining the CCJ. This may be linked to the history in that country of judges leaving the Bench and becoming actively involved in the political process. The saga of their former chief justice, Satnarine Sharma, is only the tip of the iceberg.

Indeed, one could look at the recent involvement of a local resident magistrate, who left the Bench to join the political process, of the very real fact that you will have judges who will have their political biases. I will quote the well-worn line from Lord Hewart CJ in R v Sussex Justices, Ex parte McCarthy: "Not only must justice be done; it must also be seen to be done."

4 The British, despite all their protestations, cannot unilaterally dispense with the Privy Council. It is part of the Jamaican Constitution (as is the Queen). It would require the head of state in Jamaica to rid herself of us (which she has every right of doing). However, her role as Queen of England does not, in theory at least, supersede role as Queen of Jamaica.

5 The CCJ only recently appointed a Jamaican to sit on its Bench, a Jamaican who has never served in the judiciary in Jamaica or elsewhere. It is to be noted that a lot of the criticism levelled against the decision in Morin v the Attorney General of Belize targeted the judge's judgment. To even the unseasoned legal scholar, his judgment, in particular, was cause to pause, though one thankfully notes that the outgoing CCJ president, Michael de la Bastide, and Justice Saunders of the same CCJ provided most excellent judgments to counterbalance that judge's judgment.

Appeals to indignation over colonialism is a red herring which should not be given any substantial weight. We do not look to our courts with any special lustre that their being called 'colonial' affects any right-thinking Jamaican. We want our courts to provide predictable, reliable and judicially sound judgments. It has been our experience, in Jamaica at least, that these characteristics don't come out often from our justice system.

Give common man a say

If the CCJ is such that it will meet with the people's desire, and if it is to have the ultimate judgment over the people's lives the people should be allowed to have a say in whether they want the court or not. The feeling that justice is a cloistered virtue that the common man should have no say over may be 'catnip' for the petit-bourgeoisie intelligentsia in our higher-education senior common rooms. However, it does not resonate with the common man.

Maybe if we had more accountability for our judges and people didn't feel that judges were so untouchable and unrelatable, maybe people could start to buy into our justice system and feel that it is an integral part of their lives.

We are spending US$3.07 million a year that could be better spent fixing our local courthouses, training more judges and providing greater access to justice. We could have a main criminal courthouse in Kingston that actually has parking that members of the public and attorneys can have access to. We could even, and this may blow the minds of readers, actually start to clear up the backlog of cases jamming our court system.

One wonders what the almost US$21 million, since inauguration, could have been used for. Hopefully, something more than a shiny building in Port-of-Spain providing fat pay cheques to judges who know as much about the life of the man in Pepper, St Elizabeth, as they know about the life of the man on Broad Street, Bridgetown.

Written by Robert Collie who is an attorney-at-law.

JFJ: Referendum for CCJ

JFJ: Referendum for CCJ

Source: Jamaica Gleaner/ Power 106 News

Human rights advocates, Jamaicans for Justice (JF), are maintaining that Government must conduct a referendum to determine whether to set up the Caribbean Court of Justice (CCJ) as Jamaica’s final court of appeal.

Executive Director of JFJ, Dr. Carolyn Gomes, says the matter is too important to not allow citizens to have a say in whether to establish the CCJ as Jamaica's final appellate court.

Dr. Gomes was responding to intentions outlined by the People’s National Party (PNP) in today’s Gleaner, to have the CCJ established in both the original and appellate jurisdictions, in time for the country’s 50th Independence celebrations this year.

If the PNP is successful, the CCJ will replace the London-based Privy Council as Jamaica’s final appellate court.

Minister of Justice and Attorney General in the former PNP administration, A.J. Nicholson, said given the softening of the Jamaica Labour Party’s stance on the issue, he was confident that the move would be supported by both Houses of Parliament.

However, Dr. Gomes maintains that there are still several issues, particularly regarding the security of the court, that remain a serious cause for concern.

She argues that CCJ Agreement, which establishes the court, can be easily altered by a simple majority of CARICOM prime ministers.

She notes that there was in fact a recent alteration of the Agreement, to amend the terms of the Regional Judicial and Legal Services Commission, the regional body which appoints judges to the court.

The move to institute the CCJ as Jamaica’s final appellate court was an effort commenced by the former P.J. Patterson-led PNP Government, but was strongly opposed by the Edward Seaga- led Opposition, the Jamaica Labour Party.

To date only Barbados, Belize, and Guyana have replaced the Privy Council with the CCJ.

Jamaica and Trinidad and Tobago have failed to establish the CCJ as their final court of appeal because of continuing disagreements in both countries.

THE ROLE OF THE JUDICIARY IN PROMOTING GENDER EQUALITY

THE ROLE OF THE JUDICIARY IN ... - Caribbean Court of Justice

By: The Hon. Mme. Justice Désirée P. Bernard, O.R., C.C.H. Judge, Caribbean Court of Justice

Over the past one and one half days we have been addressed about and have discussed the topic of Gender and the Law in all aspects - gender-based violence, gender and judging, human rights of victims and perpetrators of violence, equality in division of property, gender equality and international treaties as well as gender in the work-place, masculinity and violence, sentencing and access to justice. I asked myself what more was left to be said, and decided that perhaps a historical overview of earlier judicial colloquia may form a backdrop to all of the issues we have so far considered.

The last two decades have revealed increasing recognition of women's rights as human rights, no doubt facilitated by the ratification by an overwhelming number of member states of the United Nations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The effectiveness of any treaty or constitutional instrument depends in large measure on its application and interpretation. In this regard judges are strategically placed to determine such effectiveness by utilisation of international treaties in their judgments particularly in promoting and enhancing women's rights. It was recognised that the historic conservatism of the judiciary resulted in a reluctance to depart from tradition and time-honoured precedent, and a change of attitude was essential especially at the national level in order to advance the status of women.

In pursuance of this objective in 1994 the Commonwealth Secretariat, the Commonwealth Foundation and the Commonwealth Magistrates and Judges Association initiated a series of judicial colloquia on the utilisation of international human rights standards in domestic litigation. The result of this first colloquium held in Zimbabwe for senior judges of the African region was the adoption of the Victoria Falls Declaration of Principles for Promoting the Human Rights of Women. These Principles reflected the vital function of an independent judiciary to interpret and apply national constitutions and laws. One of the principles recognised that discrimination against women could be direct or indirect, and indirect discrimination requires particular scrutiny by the judiciary.

With regard to international human rights instruments the Victoria Falls Declaration recognised that these instruments have inspired many constitutional guarantees of fundamental rights and freedoms, and as such they should be interpreted generously, particularly those pertaining to women in relation to discrimination. Further, it is essential to promote a culture of respect for international and regional human rights norms, and particularly those affecting women which should be applied in the domestic courts of all nations and given full effect. They ought not to be considered as alien to domestic law in national courts.

Read more:

www.ccj.org/.../THE%20ROLE%20OF%20THE%20JUDICIA...

FAREWELL: Outgoing CCJ president pleased regional court has silenced critics http://www.cananews.net/ Sat, 16 Jul 2011 08:40:00 PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance. Peter Richards PORT OF SPAIN, Trinidad, CMC – Outgoing President of the Trinidad-based Caribbean Court of Justice (CCJ), Michael de la Bastide Friday he was satisfied that the regional court has gone a long way “towards persuading the doubting Thomases” and silencing critics about its performance. Speaking at a special sitting of the court to mark his retirement, Justice de la Bastide, 74, said that six years after the court was inaugurated, “I venture to suggest the Court’s record of performance to date suggests that it is capable of assuming the dual responsibility of interpreting and applying the Revised Treaty of Chaguaramas and …shaping and developing the regional jurisprudence as the final court of appeal for the English-speaking Caribbean”. The CCJ which has both an original and appellate jurisdication, also operates as an international tribunal interpreting the Revised Treaty of Chaguaramas that governs the Caribbean Community (CARICOM) Single Market and Economy (CSME) and the regional integration grouping. However while most of the countries are signatories to the original jurisdiction, only Barbados, Guyana and Belize are members of the appellate jurisdiction of the court that was established in 2001 to replace the London-based Privy Council as the region’s final court. Justice de la Bastide, the CCJ’s first president, said that with only three countries subscribing to the court’s appellate jurisdiction, “we can hardly claim complete success in winning the confidence of peoples of CARICOM. “I think however we have gone a significant distance towards persuading the doubting Thomases and disarming our critics. This I suggest is due to three factors. “The first is the favourable commentaries which our judgments have for the most part received. The second is the user friendly techniques and technologies which the Court has adopted to facilitate access to it and the efficient and timely disposition of cases. The third is the growing appreciation by the public in general and lawyers in particular of the measures which the CARICOM heads of government have to their credit taken to ensure the independence of the Court.” He said these measures are to be found in the various instruments by which the CCJ and its support bodies, the Regional Judicial and Legal Services Commission (RJLSC) and the CCJ Trust Fund. “The architecture of these bodies, their composition, powers and functions and the relationship between them, was carefully and consciously designed after consultation with important stakeholders. The primary purpose was to protect the Court from political and other extraneous influence and to give it every chance of becoming a quality court. “The steps taken have evoked the admonition and envy of many other regional and international tribunals,” he said. But the outgoing head of the Trinidad-based court, said he was using the opportunity of the special sitting “to warn and advise strongly against any proposal, however well intentioned, which would remove or abridge the Court’s rights in relation to its own budget in the name of correcting an alleged but illusory ‘flaw’ in the governance structure of the Court and Commission. “In this connection I would remark in passing that I have great respect for businessmen. As they say, some of my best friends are businessmen, but the training and experience of businessmen do not equip them to identify and assess the needs of a court, far less one with two jurisdictions! “Perhaps the point is more tellingly made in the penultimate recital in the preamble to the protocol which was agreed by the Court, the Commission and the Trustees to govern their relations,” he added. Justice De la Bastide said before tampering “with the carefully balanced architecture of the Court and Commission, we would also do well to remember that no one has yet devised a means of insulating businessmen from political pressure”. During his farewell speech, the outgoing CCJ president paid tribute to the people who had been instrumental in the successful operations of the court over the last six years adding that they will be fortified on September 1 by the assumption of office by the new President Sir Dennis Byron. “They will constitute a court which in my estimation, can be relied upon to perform to a standard of excellence that can match that of any court in the Commonwealth - or indeed on this planet,” he added. Justice de la Bastide also acknowledged the role played by the RJLSC, reiterating that “in every case, their appointment as Commissioners is free of any hint of political influence. “ The confidence of the Heads in the independence and judgment of the Commission is attested to by the protocol to the Agreement which entrusts the Commission with the responsibility of deciding whether to extend the tenure of the President beyond the normal retirement age notwithstanding that the President is also Chairman of the Commission subject to the caveat that the Chairman shall not take part in any deliberations or decision of the Commission relating to the matter.” Justice de la Bastide told the special sitting that he had “the good fortune as President to captain a very strong team indeed. “That being the case, two things follow. One is that just as the captain of a weak team may escape blame for its defeat, so too the captain of a strong team must acknowledge the role of his team-mates in achieving a successful result. “The other consequence is that the team must not be allowed to disintegrate or to deteriorate. Hence, my conviction that it would be nothing short of a tragedy for this region if the CCJ were allowed for whatever reason or by whatever means either to depart the scene altogether or to compromise the standards of excellence which it has set itself and has so far achieved.” The outgoing CCJ president said he did not think that “future generations will easily forgive us for such a wanton waste of a unique opportunity. “I make no apology for saying I am proud of this Court and I am comforted by the knowledge as I take my leave that it is in good hands. Naturally, I shall continue to follow its progress with great interest and attention,” he added.

What’s up with the CCJ?

SOURCE: June 4, 2011 | By KNews | Filed Under Letters

Dear Editor,

There are three pressing questions that must be asked of the Caribbean Court of Justice (CCJ): Why has it not filled its two existing vacancies?

Why is its constitutional age limit of 70 years not being enforced? And why it has never had an East Indian Justice on the court?

Collectively, these three questions represent a worrying trend that may seriously undermine the credibility of the court if they are not addressed forthwith.

The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal that was established on 14 February 2001. There were 10 initial members: Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St. Kitts & Nevis; St. Lucia; Suriname; and Trinidad & Tobago. Two other member states, Dominica and St. Vincent & The Grenadines, joined on 15 February 2003, bringing the total members to 12. he CCJ came into force on 23 July 2003, and the CCJ was inaugurated on 16 April 2005 in Port of Spain, Trinidad & Tobago.

Currently, two of the judicial nine seats are vacant. Why is this entity that purports to represent the CARICOM region unable to seat a full court?

Are these ongoing vacancies symptomatic of the low esteem the legal profession has for this body? It is worthwhile getting an answer as to what’s up with the CCJ.

Are the constitution age limits being ignored given the apparent inability to attract a full slate of judges?

My understanding is that there is an age limit of 70 and two of the current Justices, Michael de la Bastide at 74 and Desiree Bernard at 72, are now beyond that age. Is the highest court in the region ignoring its own rules? What’s up with the CCJ?

How come there has never been an East Indian Justice on the Court? Given the East Indian majority in population in Guyana and Trinidad and Tobago, and the glorious legal heritage that east Indian have added to the profession via the Luckhoos, Persauds and Singhs it does beg the question why no East Indian? West Indies cricket has suffered from racial discrimination through its history which is in no small part responsible for the sport being on its death bed. Is its legal system doing the same? It would be nice to get an honest answer.

Vijay P. Kumar

At the root of Caribbean disunity

by CLAUDE ROBINSON

Published by the Jamaica Observer

Sunday, April 03, 2011

UNLESS you have been too focused on the unseemly brawl between attorney KD Knight and Prime Minister Bruce Golding at the Dudus/Manatt enquiry you know that there has been sustained national outcry since Shanique Myrie revealed to this newspaper that she was the victim of an alleged cavity search that felt like a sexual assault by a female immigration official in Barbados.

The incident reportedly occurred on March 14. She also said the Immigration officer made several derogatory remarks about Jamaicans. She was refused permission to land and was returned to Jamaica on the next available flight.

SAMUDA… it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region

SAMUDA… it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region 1/1

Barbadian Foreign Affairs Minister Senator Maxine McClean immediately dismissed Ms Myrie's allegations.

"There is absolutely no truth to a story carried in a Jamaican newspaper on Thursday, March 24, that a female citizen of that country was body-searched by Immigration officers on arrival at the Grantley Adams International Airport." The minister accepted a report from the chief immigration officer, after "extensive investigations" that "the claims were baseless".

By Thursday, as the controversy got extensive media and political attention across the region, the Jamaican Government despatched a team of officials to Barbados to dig deeper into the issue.

Meanwhile, the Barbadian minister appeared to be dialling back her initial assertions, suggesting that the matter must be thoroughly and calmly investigated to determine what really happened and what sanctions would be applied to anyone found to be have committed an illegal offence.

What we know at this stage is that the story told by Ms Myrie to the Observer and the story told by Barbadian Immigration officials to the foreign minister cannot both be true.

Though I am prepared to suspend final judgement until all the facts are in, it is not credible for Ms Myrie to concoct such a horrifying and humiliating story about herself. It is not the kind of notoriety that any rational person would inflict on themselves.

The specific issue is not beyond reasonable resolution. The allegations outlined by Ms Myrie are illegal under Barbadian law and I do not believe it's beyond the Royal Barbados Police to get to the truth and let the law take its course. The Jamaican woman has, quite rightly, retained counsel to protect her interests and her human rights.

But as the investigation runs its course, the controversy has again raised fundamental questions about commitment to the regional integration movement which generations of political leaders have been crafting, with limited success, for more than four decades.

Reflection of deep suspicions and mistrust

Was this an isolated incident or a reflection of deeper rifts and mistrust about the practical implementation of the various protocols and agreements about the free movement of people, capital, and goods and services?

We know that Caricom suffers from periodic skirmishes ranging from trade -- the struggle to get Jamaican patties into Trinidad is a case in point — through the upkeep and utilisation of the Caribbean Court of Justice, to immigration, as proved by the Myrie case, and recitations of story after story about mistreatment in Barbados and Trinidad and Tobago of nationals from several Caricom countries.

Addressing Parliament last Wednesday, Prime Minister Golding said the most recent Caricom heads of Government meeting heard complaints from the St Vincent prime minister that nationals from his country were mistreated when they arrived in Barbados. At a meeting prior to that, a similar complaint was made by the president of Guyana.

"There are issues that we have not addressed. The deputy prime minister will confirm that at almost every Heads of Government meeting the matter is raised," Mr Golding remarked in his statement to Parliament.

In its editorial comment on the issue Thursday, The Trinidad Express acknowledged that the twin-island republic has also been fingered in the mistreatment of Jamaicans, stating that, "Jamaica has also listed this country's airports among those in the region where its citizens have charged mistreatment by officials. This is in spite of the fact that Caricom purports to be moving towards free travel between member states."

The so-called Caricom passport is honoured more in the breach than the observance and persons in possession of valid Caricom skill certificates, which identify the holder as persons eligible to move freely throughout the region, say the document is routinely ignored by border officials.

In some instances, Immigration officials do not have the authority to honour these documents because their governments did not bother to pass the necessary enabling legislation that would give the power of law to the signed agreements.

Another underlying issue is the differences in economic development. People in Trinidad and Tobago and Barbados, the two Caricom members with the most robust economies, often express concerns about 'foreigners' coming in to 'take' what rightly belongs to 'nationals'. Border officials probably reflect this mood when they encounter some Caricom nationals at points of entry.

In addition, the gap between what regional treaties say and what occurs in national practice is explained by the fact that there is no supra-national body to enforce the agreements because individual states and people have shown no inclination to give up their sovereignty, not even in part.

This is not an easy issue because no country will give up its right to make critical decisions about matters like security, border control and development strategy unless the alternative is demonstrably better than holding on to the illusion of sovereignty.

The European Union is often dangled as an example of a regional integration movement that works; but this did not happen overnight. And they still have holdouts. For example, the British have stayed out of the common Euro currency, holding on to the pound as their national currency.

In our region the benefits of integration have been slow in coming. Big inter-regional projects tend to falter. A case in point: Early in the 1970s, Jamaica's Michael Manley, Guyana's Forbes Burnham and Trinidad and Tobago's Eric Williams talked boldly and hopefully about a regional aluminium smelter using alumina from Jamaica and Guyana and energy from Trinidad. Nothing happened.

But while state-supported projects have faltered, business people at all levels are up and down the region investing and working even in the face of bureaucratic humbug. Big firms like GraceKennedy, Sagicor, and Trinidad Cement are all over the place.

This past week Karl Samuda, minister of industry, investment and commerce, was in Trinidad and Tobago wooing investors.

According to The Trinidad Express, Samuda said that "it makes no sense for Caribbean countries to accept and indeed to court investors from all over the world, but to resent those who take up such offers who come from elsewhere within the region".

At another end of the spectrum, Jamaican entertainers pull big crowds even in places where authorities show their disapproval of some of the lyrical content and on-stage profanities. And some don't get past the border.

It seems, therefore, that there is a real desire for mutually beneficial exchanges at both corporate and individual levels. But this has to be done in a context of mutual respect.

Skirmishes and squabbles are part of doing business; abuse and humiliation are not. For the most part the region is joined by commonalities of culture, language and the Caribbean Sea. The divisiveness that too often prevails over co-operation will, in all probability, disappear with time and force of circumstances. We may become more accommodating to one another as others far away become less accommodating to us.

Source: http://www.jamaicaobserver.com/pfversion/At-the-root-of-Caribbean-disunity_8617864#ixzz1IVvEOQxS

Leader of a UN criminal tribunal for Rwanda named next chief of Caribbean Court of Justice

Source : The Associated Press

The president of a U.N. criminal tribunal has been named chief of the Caribbean Court of Justice.

The Trinidad-based regional appeals body has issued a statement saying that St. Kitts native Dennis Byron will soon succeed retiring president Michael de la Bastide. The court said it would announce Byron's starting date later.

Byron is president of the U.N. International Criminal Tribunal for Rwanda and a former chief justice of the Eastern Caribbean appeals court.

The Caribbean Court of Justice is the highest court of appeal for several former British colonies in the Caribbean. So far, it has replaced the colonial-era British Privy Council in Barbados, Belize and Guyana.

Byron's appointment was announced Wednesday.