I HAVE returned from a trip abroad to find Jamaica in a seething debate about the Caribbean Court of Justice. I am distressed to feel so much heat over a matter which requires cool thinking. I do not believe that there is as much difference between the protagonists as might appear. A.J. Nicholson (Attorney-General), Derek Jones (President of the Jamaican Bar Association) and Delroy Chuck (Opposition spokesman on justice) are all attorneys whom I know to be concerned to achieve the highest standards of justice for our people. So I feel impelled to write this open letter to them and to the public.
I have publicly stated that I believe that there should be a CCJ, and that the Court should be entrenched in the Constitution by the vote of the people. The court offers great opportunity for accessible justice. It will sit in Jamaica to hear Jamaican cases. It will attract the best legal minds in the region to serve on it. Provided that enough countries are involved, with secure financing and an independent commission responsible for appointments, it can achieve more and wider justice than the Privy Council, which is accessible only to the very rich or the inmates of Death Row.
I am pleased to see that the Government agrees that the new Court should be entrenched, and that a referendum is necessary for that. So the issue is one of timing. If the referendum is too early, the people will not know what they are voting for. We need to know which countries are taking part; whether each country will entrench the Court in its Constitution; and how the financing is to be secured. A referendum before the treaty is signed would be indicative only, and then a second referendum would be needed to entrench the Court. There is no need for two referenda, only for the one which will have constitutional effect.
On the other hand if the referendum is too late, people will rightly complain that they are being asked to vote for a fait accompli. In particular we cannot jump ship from the Privy Council before the new ship has been secured by the people's vote. I hope that the Attorney- General makes it clear that the right of appeal to the Privy Council will not be removed before the new Court is both in place and approved by referendum.
A timing which would deal with all reasonable concerns would be something like this:
1. Jamaica signs the treaty, indicating that the Government in principle wishes the Court to be set up and Jamaica to be part of it, but with the reservation that it must be entrenched by referendum.
2. Over a period of one or two years, steps are taken to prepare for the new Court. The Judicial and Legal Services Commission would be appointed. The Registry of the Court would be set up. The shape of the new court, its funding and its participating nations, would begin to emerge.
3. Over the same period the public debate over the merits of the court would continue, and a consensus could emerge as to whether the proposed court met the desired standards of independence and competence. Appeals to the Privy Council would continue.
4. Before the Court assumes jurisdiction, the referendum would be held to entrench the constitutional amendments necessary to set up the Court as the final court of appeal for Jamaica.
5. Only if and when the Court is approved by referendum could it enter upon jurisdiction over Jamaican cases, and at that point the right of appeal to the Privy Council would be removed.
Anthony Gifford is an attorney-at-law.
