CCJ Will Ensure Access to Justice for Jamaicans

The Caribbean Court of Justice (CCJ), in April, celebrated 10 years of existence as the regional court for the Caribbean.

President of the CCJ, Sir Dennis Byron, in a statement issued to mark the milestone, called on all CARICOM member states to give the CCJ the 10th anniversary gift of “full accession” to the court.

While the CCJ, in its original jurisdiction, is the court of the 15-member CARICOM, only four countries have signed on to its appellate jurisdiction. They are Barbados, Guyana, Belize, and Dominica, which joined in March.

In its original jurisdiction, the CCJ serves as an international tribunal interpreting the Revised Treaty of Chaguaramas, which governs CARICOM.

Jamaica is moving to join the list of countries that have replaced the United Kingdom (UK)-based Privy Council with the CCJ, as their final appellate court.

The required pieces of legislation were passed in the House of Representatives on May 12, and were tabled in the Senate on May 22.

The Bills 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 exclude any appeals to the Privy Council instituted prior to implementation of the CCJ;
• An Act to Amend the Constitution of Jamaica, 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.

Prime Minister, the Most Hon. Portia Simpson Miller, in the debate on the CCJ Bills last November, said joining the court, in its appellate jurisdiction, will ensure access to justice for all Jamaicans.

She noted that the Privy Council is fundamentally inaccessible to the vast majority Jamaicans.

“Litigants and their Jamaican lawyers need visas to travel to the UK. Visas are not available or granted as a right. Jamaicans are the only people in the entire global structure, who are obliged to seek and obtain visas to access one of the courts,” she noted.

She further argued that the costs of retaining UK lawyers for representation in appeals are too high for the vast majority of Jamaicans.

The CCJ, on the other hand, is so designed that it travels to its member countries to hear cases on home soil.

Justice Minister, Senator the Hon. Mark Golding, said that after more than 50 years of independence, the time has come to fully embrace the CCJ as the country’s final court of appeal.

“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.

As an indication of the quality of judgments produced by the CCJ, the court was in 2013 awarded the ‘Most Important Published Decision’ by the Global Arbitration Review for its decision in the matter of the British Caribbean Bank vs the Attorney General of Belize.

The matter, heard under the appellate jurisdiction of the CCJ, regarded a dispute between the British Caribbean Bank (BCB) Ltd. and the Government of Belize, over the nationalisation of Belize Telemedia Ltd., which owed BCB US $24 million in loans and mortgages.

In addition to multiple domestic court proceedings between the two parties, BCB looked to international arbitration as a solution to their dispute with the Government of Belize. In response, Belize requested and was granted by the domestic courts, an injunction to halt the arbitration proceedings.

Following an unsuccessful appeal to the Belize Court of Appeal, BCB appealed to the CCJ on the grounds that the courts erred in granting the injunction as BCB and the Government of Belize were both party to a clause that specifically provides for arbitration in the event of a dispute.

The CCJ found that BCB had the right to proceed with arbitration and that the courts of Belize erred in granting the injunction, overturning the ruling of the Belize Court of Appeal.

The decision given in Shanique Myrie vs Barbados, in which Miss Myrie, a Jamaican, accused Barbados of violating her right to free moment, has been hailed as a “landmark” decision.

The CCJ in its 2013 ruling, declared that the Barbados government had breached Miss Myrie’s right to enter the country under article 5 of the Revised Treaty of Chaguaramas, and awarded her damages totalling $3.6 million.

The court, which sat in Jamaica and Barbados, held that CARICOM nationals are entitled to enter member states, without harassment or the imposition of impediment, and to stay for up to six months.

The ruling also gave guidelines for interpretation of the Revised Treaty of Chaguaramas under which the right to free movement is derived.

Coming out of the case, member states must now give persons written reasons for refusal of entry and also to advise them of their entitlement to access meaningful judicial review.

Senator Golding further explained that because the CCJ is a “mobile court” and utilises information and communication technologies (ICT), it is more accessible and affordable for the average person.

“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 counsels or litigants having to travel to the home base of the court, which is in Port of Spain,” he noted.

“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 Counsels and English solicitors, which can run into many millions of dollars,” the Minister added.

He also argued that the fact that Jamaicans do not have “the right to go to Britain,” means that for many, access to justice is denied.

“Many Jamaicans cannot get a UK visa. It’s not available as a right. It actually is a very complex (undertaking).  Many people who apply don’t get it. Whether they get a visa or not is entirely a matter for the discretion of the Home Office,” he pointed out.

The Minister noted further that “the average Jamaican cannot afford to take a case to the Privy Council… (on) 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.”

Senator Golding said that significant effort was put into the design of the regional court to ensure that it is free from political interference, and because it is fully funded up front, “it is not at the behest of any regional government to keep going operationally.”

Since the CCJ’s inception, 160 matters have been filed and 140 disposed of in its appellate jurisdiction, while in its original jurisdiction, the court has presided over 18 disputes arising under the Revised Treaty of Chaguaramas, with 16 completed.