A LOT has been said about the establishment of the Caribbean Court of Justice lately, mainly in the two houses of Parliament, as the political parties have debated the issues and voted (so utterly predictably) along party lines.
Jamaicans For Justice has appealed to the courts on the constitutionality of the establishment of the court by simple majority and has had its lawsuit joined with the other cases by the Jamaican Bar Association, the Independent Jamaica Council on Human Rights and the Jamaica Labour Party. The issues surrounding the establishment are many and complex and some points are not solely legal but have a moral dimension as well. It is important that all the issues are fully ventilated and understood, so we are using this opportunity to reiterate our organisation's position on them.
MAIN POINTS
The creation of a new court of final appeal is one of the most important decisions to be made in Jamaica for years. Jamaican citizens have the right to appeal to the Privy Council in criminal, civil or constitutional matters and the Government is proposing to alter this right by a simple majority in Parliament (i.e., the structure of our final court of appeal could theoretically be changed by the vote of one member of the House of Representatives). The Government proposes to take away your right of appeal to the Privy Council and replace it with a new court called the Caribbean Court of Justice, which will be both a trade court, as well as the final court of appeal.
We believe that the essential process of public education and debate on this issue has not been completed, and that the people of Jamaica must be involved in making the final decision. Some of the things that have not been adequately addressed and dealt with include the costs of the court, the permanence of the court, the independence of the court, the atrocious state of our local justice system and the right of all citizens to be involved in fundamental decisions about governance, which will affect not only themselves but their children and grandchildren.
The budget for the Caribbean Court of Appeal has been circulated. It is an estimated budget that will be met by the proceeds of a trust fund of US$100 million being established by the IDB. Jamaica is expected to be responsible for paying back US$27 million, this being the second largest portion of the total.
This is a huge amount to spend to establish a court that is likely to sit on a maximum of 25 to 30 matters per year, especially as Jamaica is carrying too much debt already. Contrast that with the workload of the resident magistrates in Trinidad, where according to figures supplied by their judiciary, 43 magistrates were responsible for the disposition of 430,000 matters. Unfortunately, no similar comparative data are available for Jamaica.
ADDITIONAL BURDEN
It must be borne in mind that the Privy Council, which has served us well since Indepen-dence, costs the Jamaican taxpayer nothing, so the cost of the CCJ will be an additional burden.
What we do know about Jamaica is that the atrocious state of our courts is a national disgrace. How can we talk about spending this amount of money funding a new Carib-bean court, when our own courts are dilapidated, and lack basic amenities such as proper toilets, and where delays in the hearing of cases can occur because of such simple matters as the absence of working photocopying facilities? Jamaicans For Justice believes that we must put our own house in order first. Justice should begin at home.
PERMANENCE AND INDEPENDENCE
The permanence of the Caribbean Court of Justice remains another issue of grave concern. A final court of appeal should be permanent. However, members may withdraw from the Caribbean Court of Justice by giving five years' notice. It is conceivable that four or five countries withdraw from the court, or don't take the trouble to join both divisions of the court, leaving only two or three Caribbean countries to participate in the appellate division of the court, reducing its legitimacy. If we go forward, then The Caribbean Court of Justice should be entrenched in the constitutions of all participating territories as a matter of treaty agreement, thus making arbitrary action by the executive of any territory less likely.
Concerns also remain about the full independence of the president of the court, his/her special prominence and the security of tenure of the judges, which are absolutely critical factors. In the appointment of the president of the regional court, who is also the chairman of the regional Judicial and Legal Services Commission, the qualified two-thirds majority needed for the appointment should be, not at the level of the heads of government, but in the individual parliaments.
This is the only way to keep in constitutional check the unbridled power of the heads of government and the simple majority in parliament. The independence of a court is critical to its credibility and the enforceability of its judgments.
CONSULT THE PEOPLE
There are many issues involved in a major decision such as whether or not to abolish the right of appeal to the Privy Council and establish a Caribbean Court of Justice. We believe it is morally wrong in this era of participatory and consultative governance for the Government of Jamaica to impose a new court over our existing courts without a referendum. Whether you support the establishment of a Caribbean Court of Justice or not, it is your right to express your opinion, and it is the Government's duty to ask us if and when or whether we choose to replace the Privy Council as our final court of appeal.
Jamaicans For Justice's bottom line remains: 'The Government should not alter our rights without asking us.'
