Published On: Tue, Oct 30th, 2012

CCJ referendum unwarranted and divisive, says Jamaican justice minister

KINGSTON, Jamaica (JIS) - A referendum to determine Jamaica’s full accession to the Caribbean Court of Justice (CCJ) would be unwarranted, divisive, disruptive, inappropriate and could cost the country at least $700 million (US$7.7 million) to conduct the national exercise.

This was suggested by Minister of Justice, Senator Mark Golding, at a recent JIS ‘Think Tank’, held at the agency’s head office in Kingston.

The minister further emphasized that under Jamaica’s constitutional arrangements, a two-thirds majority vote in the House and the Senate would suffice for Jamaica to subscribe to the appellate jurisdiction of the CCJ.

Although a signatory of the founding treaty, Jamaica has been denied full accession to the regional court. The country’s attempt to formalise its participation was blunted in February 2005, when the Privy Council declared that the CCJ-related companion Bills passed by the Jamaican Parliament in 2004 were unconstitutional and therefore void. The Bills would have established the CCJ as the final court of appeal in Jamaica.

Following the December 2011 general elections, the new People's National Party (PNP) government restated its intention to have the CCJ serving in both the original and appellate jurisdictions for Jamaica, symbolizing Jamaica’s 50th anniversary of nationhood. Resolution of the matter is set to gather momentum during this legislative year.

On July 28, 2012, the government tabled three Bills in the House of Representatives, aimed at replacing the Judicial Committee of the Privy Council with the CCJ as Jamaica's final appellate court. The Bills are scheduled to be debated in both Houses, followed by a vote for their approval.

The Bills as tabled are:

* An Act to Amend the Judicature (Appellate Jurisdiction) Act, which seeks to amend the Judicature (Appellate Jurisdiction) Act to repeal provisions for appeals to the Privy Council, and to exclude any appeals to the Privy Council instituted prior to implementation of the CCJ;

* An Act to Amend the Constitution of Jamaica, which seeks to amend section 110 of the Constitution to repeal provisions relating to appeals to the Privy Council and replace them with provisions establishing the CCJ as Jamaica's final court; and

* An Act to make provisions for the implementation of the agreement establishing the CCJ as both a court of original jurisdiction, to determine cases involving the Caribbean Community (CARICOM) and International treaties, as well as a superior court of record with appellate jurisdiction.

The justice minister laid out a number of “practical reasons for the efficacy” of the regional court, emphasising that the nation, particularly the average Jamaican, stands to benefit greatly from accession to the CCCJ.

"The average Jamaican cannot afford to take a case to the Privy Council... land disputes, commercial disputes, personal injury, accidents, tax disputes or criminal matters. They find it very difficult, if not impossible, to take the case beyond the local Court of Appeal," he said.

Golding further explained that because the CCJ will be a “mobile court” and will utilise information and communication technologies, it will be a more accessible and affordable court to the average person, “particularly with the employment of audio-visual technology, which allows you to fight most of the cases from right here in Jamaica."

"The court is set up with the region in mind, so there is significant investment in audio-visual and information and communications technology. Much of the work that takes place can be done without counsel of litigants having to travel to the home base of the court, which is in Port of Spain," he pointed out.

"That saves significant cost for litigants and for governments which have cases before the CCJ. Right now, because the Privy Council is our final court, many cases that go there, which involve the government, end up in huge invoices for English counsel and English solicitors, which can run into many millions of dollars," the minister added.

He also notes that going the route of the Privy Council is beyond the means of many Jamaicans, who would, in addition, require a visa to travel to England to fight their cases.

"Many Jamaicans cannot get a UK visa. It's not available as of right. It actually is a very complex (undertaking). Many people who apply don’t get it. I think from that standpoint, it's fundamentally inaccessible to our citizens, because they don't have the right to go to Britain. Whether they get a visa or not is entirely a matter for the discretion of the Home Office," the minister said.

Golding argued that in this the nation's 50th year of independence, the time has come to fully embrace the CCJ as the country’s final court of appeal.

"Fifty years along, it is time for us to embrace the regional institution which has the potential to be a fantastic institution. The judges are excellent and their rulings have been illuminating and sound," the minister said.

Golding pointed out that significant effort was put into the design of the regional court to ensure that it is free of political interference, that it is fully funded up front, so that “it is not at the behest of any regional governments to keep going operationally."

The court currently hears final appeals from three jurisdictions in the region – Barbados, Guyana and Belize. "They also have another function, which is what’s called original jurisdiction, where they adjudicate any disputes arising under the Treaty of Chaguaramas, which are really trade-related matters," Golding noted.

Recently, Foreign Affairs and Foreign Trade Minister, Senator A. J. Nicholson suggested a number of reasons against the need for a referendum on replacing the United Kingdom Privy Council with the CCJ as Jamaica's final Court of Appeal.

The former Minister of Justice and Attorney General was responding to Leader of Opposition Business in the Senate, Arthur Williams, who argued that entrenchment of the CCJ as the country's final appellate court would require both political co-operation as well as a referendum.

Nicholson rebutted that argument, noting that for almost 80 years, none of the 39 countries (former colonies of Britain) -- since Canada started the process in 1933 and which continued through to Belize in 2010 -- has sought to utilise the route of a referendum to de-link from the Judicial Committee of the Privy Council and to have its own final Court of Appeal.

“A referendum is, in essence, a general election, with a political campaign being the axis on which it spins. No country within the Westminster system of government has wished that matters relating to its judiciary be subjected or exposed to the political hustings,” Nicholson said.

He explained that the non-referendum route was “not a question of not trusting the people; it is a matter of not trusting a referendum exercise to leave the country's judiciary and judicial system unscathed.”

“Neither in our constitutional arrangements nor in the judgment of the Judicial Committee is there any requirement other than that of a two-thirds majority vote to be obtained in each House of Parliament for Jamaica to subscribe to the Appellate Jurisdiction of the CCJ,” he declared.

He urged opponents of the measure who insist on a referendum, “with a cost of hundreds of millions of dollars when that is not required by law or constitutionally provided for, and is, moreover, fraught with great danger to our judicial system,” to weigh the cost and reconsider.

By Allan Brooks

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