Bruce Golding, Contributor
IAN ALLEN/ STAFF PHOTOGRAPHER GOLDING... Government has now accepted that it will not be able to replace the Privy Council with the CCJ as our final appellate court without the support of the Opposition.
IT TOOK the London-based Privy Council to do what is one of the essential functions of our judiciary to protect the Constitution from executive manipulation. In doing so, the Privy Council broke no new ground but simply relied on a 1977 decision in the case of Hinds v. The Queen.
It is open to speculation what decision our local courts would have made had they not confined themselves to procedural issues. That speculation, however, can be informed by public statements made by some of our highly placed judges indicating a strong bias toward the establishment of the Caribbean Court of Justice (CCJ) to replace the Privy Council as our final court of appeal. The government has now accepted that it will not be able to replace the Privy Council with the CCJ as our final appellate court without the support of the Opposition. In responding to the Privy Council's decision,
the Jamaica Labour Party indicated its willingness to have
discussions with the government as to the future of the CCJ. We, however, indicated that such
discussions must involve
consultations with governments and parliamentary opposition groups as well as civil society groups within the Caribbean. There are good and compelling reasons for this insistence.
Our final appellate court constitutes such a fundamental pillar on which our society and our democracy rest that it cannot be built on a foundation mired in controversy and uncertainty. Such a court, if it is to enjoy security and stability, must enjoy broad support throughout the region. This is not the case with regard to the CCJ.
Let's examine the situation in a number of Caribbean countries:
BELIZE
The Opposition opposed the establishment of the CCJ as a final appellate court, forcing the government to withdraw its constitutional amendment and settle for the CCJ as a court of original jurisdiction only. Opposition Leader, Dean Barrow, stated "I, personally, am no great enthu-siast of the Caribbean Court of Justice and I think that's the sense I have with respect to the party, generally." (July 2004).
ANTIGUA
The new Prime Minister, Baldwin Spencer, has expressed strong reservation about the CCJ as a final court: "The jury is still out on the CCJ. Three landmark Privy Council decisions, all
arising from constitutional motions, leave lingering doubts in large numbers of the Antigua and Barbuda population about the
wisdom of abandoning what many see as the protection of the Privy Council. Many Antiguans and Barbudans, perhaps the majority of my compatriots, see these judgments as definitive cases against the transfer of final appellate jurisdiction to the CCJ." (July 2004).
DOMINICA
The Dominican Parliament in September 2004 passed legislation establishing the CCJ in its original jurisdiction. The Opposition abstained when the vote was taken but in the course of the debate it made clear its opposition to the CCJ as a final appellate court to replace the Privy Council.
ST. LUCIA
The leader of the opposition United Workers Party, Dr. Vaughn Lewis last week called for the postponement of the inauguration of the Caribbean Court of Justice, declaring that the Privy Council ruling "has turned the plans for the CCJ's inauguration into a mess". He went on to say that "if the CCJ is restricted to trade matters, the court is likely to be top-heavy and overloaded with highly-paid judges who have little work to do."
TRINIDAD
Faced with the requirement of a 75 per cent majority to change the constitution to replace the Privy Council with the CCJ and the refusal of the Opposition to
support it, the government was forced last week to withdraw the Bill and settle for the establishment of the CCJ in its original jurisdiction only.
BAHAMAS
The Bahamian government has already made it clear that it will not be a part of the CCJ neither in its original nor appellate jurisdiction although it will contribute financially to its operations.
The Caribbean Court of Justice cannot be established on such a shaky footing. Real concerns and deep fears exist within the region about the desirability of replacing the Privy Council with a Caribbean Court. These concerns must be addressed, not dismissed, and the fears must be allayed, not ignored, before we take this irrevocable step.
In the discussions, we will hold with the government, the Jamaica Labour Party will articulate its concerns among which is the method of appointment of judges. The Regional Judicial and Legal Services Commission which
nominates the president and appoints the judges of the CCJ is made up of 11 persons, a number of whom owe their places on the commission to positions to which they are appointed by the political directorates within the region. Further, the process of limiting the selection of judges to persons who submit applications has deprived the CCJ of eminent jurists who may be prepared to accept but unprepared to seek appointment. Other governments, opposition parties and civil society groups within the region may have other concerns.
While the JLP will discuss its concerns with the government, we remain firm that the matter is of such fundamental importance that the approval of the people by way of a referendum would have to be sought. And before that could be done, we would need to be satisfied that it has the broad support of critical stakeholders within the region, including opposition parties which may well become governments in the near future. It is for this reason that the consultative process must, as a matter of priority, include a face-to-face discussion involving representatives of government and opposition parties as well as relevant civil society groups within the region.
-----------------------------------------------------------------------------------------------------------------------------
* Bruce Golding is chairman
of the Jamaica Labour Party.
