Edward SeagaTHE JUDGEMENT by the Privy Council on February 3, 2005, declared null and void the three bills submitted to Parliament for approval to legislate provisions of a Treaty to establish the Caribbean Court of Justice (CCJ). The treaty was entered into by Jamaica with other CARICOM countries in February, 2001. The bills submitted to Parliament sought to legislate provisions to:
Abolish appeals to the Privy Council;
Enact the establishment of the Caribbean Court of Justice to replace the Privy Council as the Jamaican final court of appeal;
Enable the CCJ to accept appeals from the Appeal Court of Jamaica.
These bills were voided by the Privy Council on the grounds, in effect, that the CCJ should enjoy the same security of tenure for its judges and the court, to protect them from any undue external influence, as is enjoyed by the Appeal Court and the Supreme Court of Jamaica which would rank as lesser courts in the judicial system.
These two last-named courts are entrenched in the Constitution of Jamaica, requiring a 75 per cent majority in each House of Parliament for abolition of the court, or dismissal of any of its judges.
NO PROTECTION
To obtain a 75 per cent majority in each House of Parliament, would require the concurrence of the Opposition. The framers of the Constitution considered that this would offer proper protection to the courts and its judges as the Opposition would not concur with the Government on any such scheme.
The CCJ, however, as structured by Government, has no such protection. It was to be enacted by a simple majority (51 per cent) vote in each House of Parliament, which a government would automatically achieve without any Opposition support. But by the same argument, the court or any of its judges could be tampered with by a hostile government using the same procedure by which it was appointed, that is, a 51 per cent majority vote. Such a tenuous situation would not provide for the security of the CCJ and its judges against possible external influences from the executive (Cabinet) or legislature (Parliament).
VULNERABLE TO ABOLITION
The court would be vulnerable to abolition or any of its judges could be dismissed, if there was a loss of favour with the Government. This could lead to a perversion of justice.
Prime Minister P.J. Patterson, while unhappy with the judgement of the Privy Council, has publicly stated the intention of Government to abide by the judgement of the Privy Council.
This being the case, I am puzzled at the position being postulated by my friend David Coore, now a consultant to the office of the attorney-general, who, in a presentation on March 17, sets out some alarming arguments in what he terms to be "the way forward" for the CCJ.
These proposals are designed to find a way to get the CCJ back on track as the final court of appeal for Jamaica. He submits that the following steps should be taken by the same Government which is on record as stating that it will accept the judgement of the Privy Council. These steps include proposals to review or circumvent the ruling of the Privy Council. The proposals are:
Abandon the proposal to replace the Privy Council with the CCJ;
Abolish appeals to the Privy Council and then re-submit enabling legislation to Parlia-ment and, if necessary, to the Court of Appeal;
Endeavour to obtain a revision of the judgement of the Privy Council;
Try to obtain a revision of the treaty to remove the "risk" identified by the judgement of the Privy Council.
The first two points are to be taken together. By not proceeding to replace the Privy Council with the CCJ, the judgement of the Privy Council and the constitutional entrenchment of the CCJ, which is required to enable it to act as a replacement for the Privy Council, would not have to be pursued. Hence, the judgement of the Privy Council would, in effect be sidelined.
But this still leaves the Privy Council in position as the final Court of Appeal for Jamaica. To circumvent this, Mr. Coore proposes that Government abolishes appeals to the Privy Council.
To accomplish this process of circumvention, legislation establishing the CCJ would be re-submitted to Parliament. It would be rejected by the Opposition, but passed by Government with a simple majority vote (51 per cent), since the 75 per cent voting approval required by the Privy Council would not be applicable for this scheme. Further, there would be no appeal possible to the Privy Council as appeals would have been abolished.
This is one way to impose the very same type of CCJ structure that the Privy Council ruled against. Hence, while the prime minister says he is accepting the ruling of the Privy Council, Mr. Coore's scheme would simply get around the ruling by circumventing it.
Of course, the intensity of public reaction to such a device would probably deter any such move because it would fly in the face of a settled judicial ruling from the highest court of Jamaica. So an alternative has to be found.
In order to have another try at establishing the CCJ within its original scheme, while honouring the commitment of the prime minister to accept the ruling of the Privy Council, the third point submitted by David Coore, proposes that Government endeavour to obtain a review of the judgement by the Privy Council. The full thinking on this is to get another party, such as a CARICOM country, to present a similar case which could proceed to the Privy Council for a judicial decision which would constitute a review.
CARICOM'S INVOLVEMENT
This is not as far-fetched as it seems. The involvement of CARICOM countries was already probed by Prime Minister Patterson prior to the Privy Council judgement being handed down on February 3 when he wrote his CARICOM colleagues intimating an intervention to the Privy Council on a plea that a judgement against the CCJ, as proposed by the Government of Jamaica, would have an effect on the Caribbean Single Market and Economy (CSME), a centrepiece of the CARICOM integration process.
To my knowledge, only one prime minister (St. Kitts and Nevis) obliged, and lucky too, because the Privy Council on receipt of the petition instructed its Registrar to state that arguments from non-participants would not be heard. The Registrar of the Privy Council wrote as follows on January 24th, 2005.
SUBMISSIONS LODGED
"Thank you for your letters of January 11 and 18. I have laid copies of your letter dated January 11 (received here on January 14) before their Lordships who heard this appeal. I think you are aware in general terms of the stage this appeal has reached. The hearing was completed on December 15, 2004, when judgement was reserved. You are right in saying that the board invited the parties to lodge additional submissions in writing on a particular point, but those submissions had all been lodged here by Friday, January 7, 2005. It is likely that judgement will be delivered by the end of next week. In these circumstances, their lordships have instructed me to inform you that they are not prepared to allow non-parties to intervene in this appeal at this stage."
At any rate, the CSME relates to the original jurisdiction of the CCJ which deals with trade disputes, not with the appellate function on which the Privy Council ruled. It is far fetched, therefore, to build an argument that the ruling of the Privy Council on the appelate function of the CCJ could affect the CSME.
This argument endeavouring to use the CSME as a point of serious consideration has also been utilized by Government through its legal team. After the arguments by both sides were heard by the Privy Council on December 14 and 15, 2004, both sides were asked by the Council (or Board as it refers to itself) to submit proposals for dealing with the introduction of the CCJ on an entrenched basis into Section 110 of the Constitution which would require the holding of a referendum under Section 49. The holding of a referendum without concurrence of the Opposition is a position Government wishes to avoid.
The response of Government went way beyond the substance of the direct request from the Privy Council. It set out in a letter of the 7th January, 2005, to the Privy Council a range of arguments (paragraphs 12-18 of the letter) not previously raised in the original presentation to the Privy Council on December 14 and 15, 2004, in which it sought to have a review of some of the points made by the Appelant, although the time for the presentation of such arguments had already passed. But the Privy Council did not entertain any further submissions.
The proposals set out by David Coore, is a new attempt, coming as it does after the judgement, in which he is seeking to go to extremes to keep hopes alive. This leads us to ask the question whether David Coore is "flying a kite" to test public opinion about some possible back door re-entry of the CCJ.
If the judgement of the highest court established by the Constitution is to be circumvented by the Government, what is the purpose of a Constitution from which Government is supposed to derive all power. Such an attempt to inveigle a way around a position using Caribbean solidarity reminds me of: the call for solidarity in a moment of adversity made by Michael Manley when, with the prospect of political defeat looming, he called upon some of his Caribbean colleagues to declare that the United States was destabilizing their countries. The Prime Ministers of Trinidad & Tobago and Barbados, Eric Williams and Errol Barrow, obliged, although only Jamaica was experiencing disturbing conditions:
In the mid 1970s with the Net International Reserves fell below zero and the Minister of Finance found it difficult to anchor the value of the Jamaica dollar to the peg set out in law which included gold content. He simply changed the law to abolish the need for gold. Without the anchor, the Jamaican dollar began its long slide. That Minister of Finance was David Coore.
There is a tendency of this Government to move from the real to unreal, not in gradual steps but in one quick step without missing a beat. This raises questions about whether the Government understands how severe a problem can be created by those quick steps in the destruction of credibility and loss of confidence.
It would seem to me that we are dealing with people similar to the Captain of a company in the US Civil War who, on marching his men in file came upon a wall too high to climb, too wide to go around. After scratching his head and knowing that he had to get to the other side, he gave his command: "Company-y-y", he barked, "assemble on the other side".
That is where we are at right now with the CCJ, trying to assemble on the other side.
April 10, 2005
Edward Seaga is a former Prime Minister. He is now a Distinguished Fellow at the UWI.
