Ken Jones, ContributorI AM numbered among the two and a half million Jamaican lay persons who are about to be given a Caribbean Court of Justice without being allowed the right to help decide whether we want it or not. We are being herded into the unknown, charged with the cost of an unnecessary experiment and being made vulnerable and defenceless against any negative consequences that might result. This decision is not made by men and women whose primary concern is with the dispensation of justice, but by politicians.
For more than three hundred years, through Colonialism and Independence, we have seen the British judicial system grow more and more respectable and trustworthy; and now we are about to exchange it for something new, untried and based upon an ill-founded concept of nationalism.
HISTORIC REPUTATION
In essence, the proposed Caribbean Court of Justice is another retreat from Jamaican Independence. We are about to surrender an important aspect of our sovereignty, even as we have been selling our home-grown businesses to Trinidad, Barbados and any other that comes with cash, credentials and a claim that they are better able to take care of our business. And it is a step down from the lofty level of an internationally constituted court of historic reputation to one that is really a regional experiment that guarantees no improvement in the standard of justice for the people of Jamaica.
STIR NATIONALISM
Up to now the Jamaican Court of Appeal is technically the highest court in our jurisdiction, because it is empowered to hand down the final verdict in all legal disputes. Despite its wisdom and prestige the Judicial Committee is not a court and as such does not enter a judgment. Instead, with the authority of the Jamaican Constitution, it tenders advice to Her Majesty, Jamaica's constitutional Head of State, and, by extension, to our Court of Appeal which, acting on the advice, records judgment accordingly.
This move to transfer authority to a Caribbean Court of Justice is a procedure by which the sovereignty of the Jamaican Court of Appeal will be surrendered to a foreign body that will not advise, but rule us in judicial matters. It will hand down verdicts in the name of the ghost of a West Indian Federation that was rejected by the Jamaican people in the referendum of 1961. This leads to the question as to whether decisions of our Court of Appeal can properly be reviewed by a tribunal outside the Jamaica constitution?
In the attempt to stir Jamaican nationalism, some politicians would have us believe that the Judicial Committee of the Privy Council is a body made up of former English colonial masters who are unfamiliar with local conditions and who look down upon us with airs of superiority and condescension. In fact, it is a rich legal resource of a depth and experience not readily available in a small country such as Jamaica; or even the collection of Caribbean territories, which together have a smaller population than Jamaica. Experience and distinction such as this should not be discarded without the most serious consideration of what the consequences might be.
Again, the Judicial Committee is not an exclusive group of English law lords. As we have seen in a recent Privy Council advice, it is possible for a Jamaican judge to sit on the Judicial Committee and participate fully in the proceedings. Many noted Caribbean jurists have played this role in the past. They include the late Sir H.O.B. Wooding of Trinidad and Tobago, Hon. Telford Georges, Sir William Douglas, Sir Vincent Flosack, our own former Chief Justice, Hon. Edward Zacca, and jurists from other commonwealth countries.
EMPHASISING LOCALISATION
Today the House of Lords is presided over by Baroness Amos, a black woman from Guyana, who is also head of the Privy Council, of which the Judicial Committee is a part. This suggests that we might be better served, seeking greater involvement at the level of the Privy Council instead of emphasising localisation and risking the perception of being unable to take a dispassionate stand in controversial issues.
In the face of the argument about costliness one must cite the very recent case of Lambert Watson, 44 year-old labourer and an appellant of obviously limited financial resources, whose case was successfully heard by the Privy Council.
For a few litigants, the Privy Council costs may or may not be slightly higher than those of the Caribbean Court. On the other hand, they do not affect the Jamaican taxpayers and are paid entirely by the British taxpayers. While the Jamaican government works to put further tax burdens on us many countries make use of various opportunities to get the best and most cost-effective judicial systems. Going to the Privy Council does no more damage to the independence of our judiciary than do submissions of Jamaica and almost all other countries to the jurisdiction of the International Court of Justice.
The retention of appeals to a court sitting in England is not an insult to Jamaican nationhood. It is our legal heritage and an indication of national maturity that such links need not be severed for the sake of the petty nationalism that has brought about a politically motivated decision by the Government.
After a long period of debate a very significant number of individuals and institutions remain convinced that the right of appeal to the Judicial Committee should be retained. They include the reasonable thought that we should not risk losing the irreplaceable benefits of continuity, tradition, informed detachment, and the available expertise of an older and larger society. It has been wisely said that arguments for the retention of this legal link are not for sentimental reasons, they are based on realism and efficiency, and a desire to share in a wider legal heritage.
