Dennie Quill, Contributor

I feel compelled to return to the topic of the Caribbean Court of Justice (CCJ) this week, not just because of its recent landmark death penalty ruling, but more so because there appears to be no plan to resolve the constitutional challenges, which have kept Jamaica and other CARICOM countries from adopting the court as their highest appellate body.

In the most important of five cases it has heard so far, on November 8, the CCJ dismissed an appeal by the Barbados government, which had sought to restore execution orders for two men convicted of murdering a 22-year-old woman.

The case was viewed in legal circles as a test of the new court's willingness to uphold the death penalty, and perhaps some governments were hopeful that the CCJ would have cleared the way for the resumption of executions. The last execution in the region took place in the Bahamas in 2000, and there is not likely to be any more for a while.

Barbados had also asked the Trinidad-based CCJ to overturn a precedent set by the London-based Privy Council that requires executions to take place within five years of conviction. But, the CCJ cited the passage of more than five years as a factor in its decision that the death sentences of the Barbadian duo should be commuted.

Barbados and Guyana are still the only two CARICOM countries that have embraced the CCJ. Jamaica and others still have to foot their bill of the US$100 million and CCJ President Michael de la Bastide and his staff do not have enough work to justify their salaries.

No one has seen it fit to educate the Jamaican population on the benefits or otherwise of the CCJ, and there has not been enough information on how this court will operate in keeping with the letter and spirit of the new CARICOM treaty that provides for the creation of the Caribbean Single Market and Economy (CSME).

Following my article in July, attorney-at-law David Batts in a letter to the editor recounted the early initiatives to establish a final appellate court.

Final regional court

He said the first notable calls for a final regional court emanated from the Organisation of Commonwealth Caribbean Bar Associations (OCCBA) which established a committee in 1970 to examine the issue. The committee's 1972 report called for the establishment of a regional court, but it was ignored. The matter remained dormant during the 1980s. Come the 1990s and the governments got excited about having their own court. In 1991, the Jamaican Bar Association passed a resolution calling on the government to present full details on the proposed Caribbean Court of Appeal as it was then called. While the Bar Association supported the idea of a regional appellate court to replace the Privy Council, it argued the court should be properly constituted.

The draft treaty and other protocols were sent to the Association in 1998 and 1999. Again the Bar Association made its position clear after analysing the treaty and examining the case for and against the removal of the Privy Council as the final appellate court.

Mr. Batts says although suggested changes were made to the treaty, the Jamaican government signed the treaty despite the clear warning that the creation of such a court could not be done by simple legislation, not even with its parliamentary majority.

Several individuals and organisations including then Opposition Leader Edward Seaga, the Jamaican Bar Association, the Independent Jamaican Council for Human Rights, Jamaicans for Justice and Leonie Marshall all brought actions in court seeking to declare that such a fundamental change required constitutional amendment. Then the five Law Lords of the Judicial Committee of the Privy Council agreed that the procedures adopted by the Jamaican government did not comply with the requirements of the Jamaican constitution.

Mr. Batts says the Bar Association did its duty to the people of Jamaica and that together the litigants established a judicial precedent, which ensured that no simple majority in the House of Parliament could replace the final court of Jamaica's choosing. So where do we go from here? There is simply too much foot-dragging among CARICOM leaders and this is another example.

Now with talk of an imminent election, perhaps it would be good to place the question of the CCJ on the ballot - for only a referendum can decide the issue.

Dennie Quill is a veteran journalist who may be reached at denniequill@hotmail.com