Dec 14, 1999
'We cannot wait until everything is state of the art...'
DURING THE next several months much attention will be focused in Jamaica and throughout CARICOM on the proposed Caribbean Court of Justice (CCJ), which is to replace the Judicial Committee of the Privy Council, London, as the region's final Court of Appeal. Lloyd Williams, Senior Associate Editor, spoke with Attorney-General A. J. Nicholson, Q.C., on the CCJ, and today we bring you the final segment of the two-part interview.
Q: What do you say to the argument that the physical infrastructure of the justice system -- the island's courthouses -- should be put in top shape and provided with modern equipment such as electronic recording devices, before a Caribbean Court of Justice is set up?
AG: The Attorneys-General of the Caribbean, just like the administrations across the Caribbean, are fully cognisant of the fact that our justice system in the Caribbean and particularly here in Jamaica, is not what it ought to be. However, we cannot make the good or the best the enemy of the good. We cannot say we must wait until everything is in a sort of state of the art circumstance before we go ahead with what, inevitably, it seems to some of us in the Caribbean, is a matter that will come on board.
"It means then that we have to fight this battle on two fronts. One, the administrations across the Caribbean must be made even more aware than they are at this time, that the justice system in Jamaica and other territories, need updating. In any event, at the same time because the Caribbean Court of Justice is such an important instrument to the integration movement, a way has to be found for that court to be established and at the same time advancing the methods by which we go about our business in the justice system."
Q: What guarantees will be put in place to prevent political placement of judges or political interference in the Caribbean Court of Justice?
AG: It is readily recognised that there is deep concern in the Caribbean even though there is no historical experience to prove it, that there should be a proper insulation of the judiciary especially in the Caribbean Court of Justice, from political whim or fancy. The policy document from which we move in the Legal Affairs Committee (made up of the Caribbean Attorneys-General) is that of 1988 which was placed on the table of CARICOM by Jamaica. The only reservation that was expressed at that time was that there should be -- it was suggested by the Rt. Hon. Edward Seaga -- a Regional Judicial and Legal Services Commission.
"And we have recommended that that commission is to be so broad-based and skewed towards the legal profession that the best persons would be chosen. All of the judges of the Court, except the President, will be chosen by that Regional Judicial and Legal Services Commission. The only one that will go to the Heads for approval is the President, but all interviews will be done by the Commission and the vote on the Commission, just as the vote on the Heads for appointment of Judges, or the President, must be by a qualified majority, so that no one person would be able to says that 'I don't want such and such a judge', therefore that is the end of the matter.
"Nowhere in the world is the head of the judiciary chosen without some political input. We are not saying here in Jamaica or in the Caribbean that the political input is to be so overriding that persons have suspicions. But with the best will in the world you are not going to be able to appoint a judge, especially the head of the judiciary, without some political input. Even in the United States where there is a Senate committee established to screen these applicants the final decision is that of the head of government.
"We are not saying that the guarantees that we have recommended are foolproof. We ask interested parties if they can come up with a different mechanism which they think is better than the one that we have recommended, it would be our duty to take it on board and examine it."
Q: How will the Court benefit the man-in-the street in Kingston, Port-of-Spain, Bridgetown or St. George's?
AG: This raises the question of access to the Court. The first thing we have to understand is that most of the cases that go to the Privy Council from Jamaica are really cases which go by legal aid -- in forma pauperis (not liable for costs) -- and most of them have to do with capital punishment -- murder cases.
He said research had shown that between Independence in 1962 and 1993 an average of 12 to 15 cases a year had gone to the Privy Council from Jamaica and most were murder cases.
"If a man in the street wishes to take his case to the Privy Council from the Court of Appeal here in Jamaica, it would cost him at least 40,000 pounds sterling (J$2,560,000). History has shown that that is way beyond the reach of all persons in Jamaica save for a really small minority. It means that access to justice as far as the Privy Council is concerned, is really non-existent, for all practical purposes, for the man in the street in the Caribbean. It means then that you have to bring the Court to him.
"The court that is being recommended here, will be established in Trinidad and Tobago but it is to be an itinerant court so that, if for example, there are 10 cases to be heard by the Caribbean Court from Jamaica, the judges could move themselves to Jamaica or Nassau, or St. George's or wherever, and hear those cases which would make it less expensive for the litigant and less tiring to the lawyers. It may very well be that the attorneys may learn a little less as far as costs are concerned in these circumstances, but it is a good swop in the sense that you are giving access to the litigant and at the same time the attorney would be able to prepare his case far more easily because there would be lack of travel and the like.
"This is not to say that a case could not be heard in Trinidad and Tobago from Jamaica, but since the mechanism is put in place for an itinerant court, much like what happened with the Federal Court which was one of the best institutions that have come out of the Caribbean, since we intend to go that route, we believe that that is a better mechanism".
Q: Where do we go from here? Do we have the money for the public education programme that is required to inform the people about the Caribbean Court of Justice before it actually come into being?
The Attorney-General said that from December 3 to 6 there was a meeting here in Kingston in which the Chief Justices of the Caribbean and the Attorneys-General and other justice personnel met with representatives of the World Bank, the Inter-American Development Bank and the U.S. Agency for International Development which all have "an abiding interest in this court." He said that at least two of those bodies said they would assist with funding the public education programme.
"Now, we cannot depend on outside help by itself for a public education programme. It means then that the governments across the Caribbean must be a part of it."
But he said it wouldn't be just a question of giving information and educating the people, but of getting a feedback and interacting with the people "because if that does not take place I don't think it would be a good thing to establish such an important institution without at least the input of the people in the territory itself".
The debate on the Caribbean Court of Justice in the Jamaican Parliament was scheduled to take place before the end of this legislative year, but Prime Minister P.J. Patterson decided that it should await the public education programme, so that people with documents in hand will be able to follow it sensibly and more fruitfully.
The main thrust from here on will be the public education campaign, so that by mid-January 2000 there will be numerous documents on the court available throughout Jamaica and CARICOM, information will be posted on a web site, and there will be articles in newspapers and discussions on radio and television.
Mr. Nicholson was his usually frank self on the issue of financing the court. "We understand that we have to come up with creative and new ideas for the financing of the Court. We realise fully that we don't have quite a savoury history of the financing of Caribbean institutions. Therefore we can't use the same mechanism for the financing of the court that we have used before. So, I for my part, believe that the best creative minds of the Caribbean, whether they are accountants or bankers have to come up with mechanisms, so that it is not strictly dependent on just the Consolidated Fund, whether it is a first charge on it or not."
CARICOM Heads of Government had decided, he said, that they were not going to sign off on the Court until two things happened. "One, a properly, fully established instrument for the financing of the Court, and two, the money (to finance the court) must be found and put down for at least five years." He said experts from the European Court of Justice had also signified its intention to assist with the setting up of the court.