Delroy ChuckON TUESDAY, July 27, the Government took another step to leave the Judicial Committee of the Privy Council (JCPC) as the final appellate court and to replace it with the Caribbean Court of Justice (CCJ). This move lacks coherence. At the present time, Jamaica proposes to move from judicial certainty to uncertainty in our appellate process. There is still grave doubt about the CCJ even while we act relentlessly to leave the JCPC. We proceed with political hope, which is so often dashed, instead of with certainty and full assurance.
Imagine, the JCPC decides about four to six cases annually from Jamaica and about 20 to 25 cases from those Caribbean territories intent on creating the CCJ. All cases reaching the JCPC are dealt with expeditiously. At the same time, in every Caribbean territory, there is a huge backlog of cases suffocating our justice system. The delivery of Caribbean justice is at its lowest ebb and demands new ways and means to meet the needs of our people. Yet, our highest court, which is working well, is being fixed, when the rest of the court system, which needs urgent fixing, is largely ignored. It is simply the irony of politics and of leaders who put politics before practical considerations.
APPELLATE JURISDICTION
The present position is that the appellate jurisdiction of the CCJ will come into existence when three countries sign on and, as I understand it, Jamaica, Barbados and Guyana are getting ready to join. However, Jamaica's ability to be a part of the CCJ is still unsettled, as the matter is before the JCPC to settle if the bills before Parliament can constitutionally create and protect a new final appellate court. If the JCPC rules that the bills are unconstitutional, then we would have one bill that removes us from the JCPC and others that fail to set up a final appellate court. Such a situation is untenable. I strongly urge that we should not leave the JCPC and join the CCJ until Jamaica and other countries have settled the constitutional issues and are ready to join the CCJ together.
At the end of the day, it is quite likely that the CCJ will come into existence but all, or most of, the countries should get it right before a few hastily leave the JCPC. I strongly urge that we go ahead and set up the CCJ as a trade court but delay the appellate jurisdiction of the court. In fact, it would be quite untidy for the Caribbean countries to have the CCJ as binding on trade disputes under the CSME, while some have the JCPC as the final appellate court and others have the CCJ, as conflicts may well emerge within Caribbean countries. Imagine if Trinidad is still with the JCPC and Jamaica has joined the CCJ, companies from both countries have a dispute in which the Trinidadian company says it is a breach of contract and takes the matter straight to the JCPC, Jamaica sees it as a trade dispute and gets a ruling from the CCJ under its original jurisdiction, which decision is binding on the companies?
INSIGHTFUL LEGAL LEARNING
If we do leave the JCPC, as seems likely, I will be disappointed, as it is a judicial body that has served us well and from which I have had the benefit of reading some of the most wonderful and insightful legal learning. Apart from a few death penalty cases, in which there is a diversity of opinions, no one can contend that the decisions of the JCPC have not been of the highest quality and added to legal scholarship. Many JCPC decisions originating from Jamaica have made a difference to the development of the common law, graced the pages of legal textbooks and changed the course of legal policies in many countries. Of great significance when one reads the judgments of the JCPC is the priority it puts on individual liberty and dignity and, simultaneously, to restrain and control the oppressive state machinery. Judges in the Caribbean, for whatever reason, perhaps because most come from the public sector, have tended to favour the state and the protection of the state agencies to the detriment of the individual.
For example, if the state has a judgement against an individual, the latter must comply promptly lest harsh sanctions apply, while it is a burdensome task to pursue and enforce actions against the state. Nowadays, human rights concerns and the promotion of individual rights and freedoms are dominant considerations in judicial policies. Will the CCJ be more favourable to the state or to the rights, freedoms and dignity of the individual?
COMMON LAW WORLD
Jamaica and the rest of the Caribbean may well develop a body of legal learning that compares favourably with the rest of the common law world, which legal scholarship is not now evident. That will only happen if the countries of the Caribbean see the rule of law and the justice system as fundamental pillars of our fledgling democracy and prepared to put sufficient resources into the legal system to attract the best and brightest from the legal profession, and ensure that justice is delivered in a timely, scholarly and efficient manner.
Delroy Chuck is an attorney-at-law and Opposition Member of Parliament. He can be
contacted by e-mail at delchuck@hotmail.com.
