A.J. Nicholson | Jamaican final court not a viable option

Saint Lucia, with former Prime Minister Dr Kenny Anthony, an architect of the creation of the Caribbean Court of Justice leading the charge, has now joined Guyana, Barbados, Belize and the Commonwealth of Dominica in the visionary rebranding of the pinnacle of their judicial arrangements.

Nationalistic fervour embraces the idea of courts, including courts of last resort, being situate within territorial borders. Unassailable reasons must therefore be provided to show why, for Jamaica and Saint Lucia or for any other, a local final court, whether of a second or third tier, would not be the best option.

The issues involved are of profound significance since it has been announced that the matter of delinking from the Privy Council is now, after several years, at last under consideration within this Jamaica Labour Party (JLP)-led government.

Should that be true, it would be necessary for their discussions to be informed by valued conclusions that have long been reached concerning the intolerable condition that exists at the apex of our judicial system, a factor long snubbed by that party, opting instead to place stumbling blocks in the way of that utterly unacceptable situation being properly addressed and rectified.

Up until the beginning of this century, mature consensus existed for Independent Jamaica to subscribe to the jurisdiction of a regional final court in substitution for appeals to the Privy Council.

Barristers within the Commonwealth Caribbean purposefully fleshed out the idea during the first decade of the Independence journey, convincing the Hugh Shearer-led JLP government in 1970 to have it registered as Jamaica’s first policy position on constitutional reform.

When the regional heads of government in July 1999 determined that the time had finally arrived for the court to come into existence, they settled on a Preparatory Committee for the Establishment of the Caribbean Court of Justice to drive the initiative to completion, with then Prime Minister Dr Anthony having oversight responsibility.

Prime Minister P.J. Patterson, having created a national committee for the purpose, invited opposition leader Edward Seaga to name their members, which he did. Neither of the two named individuals attended a single meeting of that committee throughout the years.

COME TO GRIPS

Had those named representatives joined in the deliberations, they and their party would have come to grips with why, for Jamaica labouring under the crisis situation of the stigma of being declared unwelcome at the British court, there is not a single issue in this reform process, including the projected awkward gallop in the required pursuit of republican status, that is nearly as urgent and beneficial to our people as embracing the accessible regional court.

They would also have been exposed to the studied reasoning as to why a local final court could not be a viable option.

Undoubtedly, chief among some unyielding factors was that, the petitions from Commonwealth Caribbean states had long ceased to be pleasingly received by the British judges who were not shy in so publicly declaring.

There were the long-standing impediments of inaccessibility and unaffordability for the vast majority of the region’s citizens, and the clear inability of the British judges to appreciate the cultural norms that obtain in foreign lands where the petitions originated.

The policy of attachment to the Privy Council was characterised by clinging negatives which should prompt urgent disengagement by the Caribbean states.

There was, however, that positive feature which is a required signature of all courts, inescapable in every court of last resort: the Privy Council is not subject to influence from any quarter within the region.

It would, of course, be necessary for that standout feature to undergird the structure that would replace the British institution. From right across the region came the clamour that the court should be “insulated from political influence”.

Loudest voices were heard from Jamaica, with the clarion call that the method for appointment of the judges should not be in government hands: from the Jamaican Bar Association, particularly during the strident presidency of Derrick Jones; from the JLP itself; from the busy human rights activists incessantly on the talk shows, the trade unions, newspaper articles and editorials, among others.

Having listened and deliberated, the Regional Preparatory Committee eventually recommended that a Regional Judicial and Legal Services Commission, consisting of eminent citizens drawn from a wide cross-section within the region, should be tasked with selecting the judges for the court.

The only political hand on that process was the approval by heads of government of a candidate to be the president, with the stipulation that the candidate must have been recommended by the commission.

FURTHER THINKING

Further thinking had to be done: the political hand lurked within the policy by which the judicial system is funded through budgetary allocations in the several states. The meagre annual allocation to the justice portfolios, and the unenterprising response to regional financial obligations, inspired no confidence that the final court should be left in that stream.

It was out of that thinking that the unique trust fund arrangement was born and which has come to receive ongoing international plaudits.

The global acceptance of the regional court stands, among other things, on the erudition displayed in the judgments and the turnaround time for petitions to be heard. However, the bedrock acclaim is anchored on the acknowledged ingenuity of the guardrails erected to guarantee its independence and to insulate the court from political and other powerful influence.

The well-received groundbreaking mechanisms for appointment of its judges and for the funding of the institution’s operations are not replicated elsewhere.

While a final court must enjoy independence and international respect, no Caribbean institution, within memory, has earned such wide acclaim in so short a time. Structural smallness and economic challenges would strongly militate against these British Caribbean territories creating local final courts to rise to attain global acceptance at the level of the Privy Council or the Caribbean Court of Justice.

Moreover, it would be invidious of those, like the JLP, who correctly argued so strongly for insulation against political and other influence concerning the final appeal court to turn around and argue for a local final court placed within those confined territorial spaces.

For these small Caribbean states, the idea of local final courts is not sustainable. This was clearly appreciated by the British governors who at their 1947 Bridgetown meeting recommended the creation of the regional institution.

This Commonwealth Caribbean group of states is providentially positioned, all washed by the same sea. The vast majority of their citizenry share the very same cultural history, enslaved and colonised by British overlords. Their citizens speak the English language and their justice systems have the same root and branches.

EQUALISATION AGENT

Emphatically, their placement here in the Caribbean sprang from irreparable injustice. They are destined to seek after justice together by mentally emancipating themselves together. The Caribbean Court of Justice, their own creation, is meant to be an equalisation agent in that search.

This JLP-led Government cannot continue uncaringly to fight against the things they cannot change. They blind themselves to the confluence of unchangeable circumstances that has led inevitably to the regional court being ‘the one best way’ out of the shame-filled attachment to the British institution.

Privy Council judges forecast the kinds of accolades that would come to be heaped upon the Caribbean Court of Justice even before its inauguration. Unsolicited, they declared that we have endeavoured “to create a regional court of high quality and complete independence enjoying all the advantages that a regional court could hope to enjoy”.

Does transparency and openness not oblige this stubbornly resistant JLP-led government to emerge from their sepulchral silence to become bold and responsible enough to share their locked away misgivings for the rest of the world, including the Constitutional Reform Committee, to contemplate?

 

- A.J. Nicholson is a former minister of justice. Send feedback to columns@gleanerjm.com