Count down to Caribbean Court

Analysis by Rickey Singh
Guyana Chronicle
May 10, 2000

THE CLEAR message from Prime Minister Percival Patterson is that his government stands ready to proceed with arrangements for Jamaica to be a founding member of the proposed Caribbean Court of Justice (CCJ) and to sever links with the Judicial Committee of the Privy Council as the country's court of final resort.

Both his traditional political opponents - Edward Seaga's Jamaica Labour Party (JLP) - as well as the Jamaica Bar Association (JBA) and others who are either opposed to the CCJ, or have reservations about its jurisdiction and independence, have been served notice that next month end is the deadline for Jamaica's final position on the Court.

This means that come July, when the Caribbean Community (CARICOM) regular annual summit takes place, as scheduled, in St. Vincent - currently an arena of serious domestic political conflict - a mutually acceptable date could be finalised for the inauguration in 2001 of the CCJ.

The reality is that without Jamaica, pressures will increase in Trinidad and Tobago among those who have concerns, like, for instance, the Jamaica Bar Association, about the jurisprudence and political independence of the CCJ.

Mr Seaga feels so strongly about Jamaica retaining the Privy Council as its final Appellate Court, that he is insisting that the issue should be determined at a national referendum. Prime Minister Patterson, whose People's National Party has a very comfortable two thirds majority, will have none of that.

And seemingly fortified by the fact that the country's constitution does not make such a referendum necessary, Patterson will be relying on his parliamentary two thirds majority for the official `green light' for Jamaica to be a founding member of the CCJ.

The inauguration would, of course, have to be preceded by the formal signing of the inter-governmental agreement on the CCJ by the four member states to initially comprise the membership of the CCJ - Barbados, Guyana, Jamaica and Trinidad and Tobago.

At their Eleventh Inter-Sessional Meeting in March in St. Kitts, CARICOM leaders, including those whose countries will not be members at the time of the inauguration of the CCJ, reaffirmed their commitment to have the regional Court in place with original jurisdiction in respect of the interpretation and application of the now substantially revised CARICOM Treaty.

A comprehensive region-wide public education programme on the CCJ - its history, structure, rules, financing and functions - is expected to gain momentum within another month with financial help from the Inter-American Development Bank (IDB).

An independent funding mechanism, designed to insulate the independence of the CCJ from political pressures by any member country, is one of the areas that has been engaging much attention and energy by members a preparatory committee of Attorneys General and Community technocrats headed by the Attorney General of Barbados, David Simmons.

Well ahead of the ceremonial inauguration of the CCJ in 2001, that may or may not coincide with the launching of the Caribbean Community Single Market and Economy, there will have to be in place the Judicial and Legal Services Commission, the Rules of Court and a fixed financing mechanism, all designed to generate confidence in the independence of the Court.

Some national bar associations, while supportive of the creation of a regional institution to replace the Privy Council in Britain, have been voicing their concerns that the governments seem anxious to proceed with the CCJ while failing to have proper and effective infrastructure for the functioning of Courts in national jurisdictions.

Nor do they feel that the governments should have any involvement in determining who should be the President of the CCJ or the remuneration of judges to be appointed.

But this attitude has been dismissed by advocates of the CCJ as being unduly negative with the explanation that the judges of the Court will be appointed by the Regional Judicial and Services Commission that itself will be very carefully established so that it will not be subject to political direction.

The appointment or removal of the President of the Court must be done with no less than a qualified majority vote of three quarters of the contracting parties to the Court and in accordance with the recommendation of the Judicial and Legal Services Commission.

Prime Minister Patterson, who has pointed to clear signals coming from law lords themselves in Britain about the advisability of the Caribbean reducing its dependence on the Privy Council, has stated that the region should not wait to be kicked out from where it had become a burden to others, but should leave with dignity.

In October 1999, for instance, Lord Browne-Wilkinson, senior law lord, in speaking of the problems of backlog of cases and heavy workload of the Privy Council, made clear his preference for removal of some of that workload that includes appeals from the Caribbean on death penalty cases.

"I think," he said, "the practice whereby a Court in Downing Street (London) seeks to decide what a country in the Caribbean should or should not do is not proving satisfactory, and our decisions in death row cases are now not very well received.

"You can believe in the death penalty or you cannot," said the law lord, "but the problem, and this is just a personal view, is that to let those countries decide for themselves. It would be better for everybody..."

The region's relationship with the Privy Council is expected to surface in the region-wide education programme on the Caribbean Court of Justice of which, after the St Kitts heads of government meeting, there appears to be greater determination to make a reality in 2001.

Last week, the CARICOM Secretariat took the opportunity of the Third Caribbean Media Conference in Guyana to circulate some basic information on the CCJ and what it is all about as part of a region-wide education programme to be pursued