Country Should Accede to CCJ – Dr. Lloyd Barnett

Constitutional Lawyer and Queen’s Counsel, Dr. Lloyd Barnett, is of the view that the country should accede to the Caribbean Court of Justice (CCJ) as its final appellate authority, by severing ties with the British Monarchy, and by extension, the United Kingdom’s Privy Council.

He echoes the sentiments of former Prime Ministers, the Most Hon. P.J. Patterson and the Hon. Bruce Golding as well as current Prime Minister, the Most Hon. Portia Simpson Miller, who have called for the abolition of the British Monarchy. This notion is even more relevant as the country celebrates its 50th year of political Independence.

Under Jamaica’s current parliamentary system, which is modelled off the Westminster system, Her Majesty The Queen, is Jamaica’s Constitutional Head of State, represented locally by the Governor-General.

As a member of the Commonwealth of Nations, Jamaica is entitled to membership in the Privy Council, which is currently the nation’s final court of appeal.

Addressing a Guest Speaker’s Night function of the Kiwanis Club of North St. Andrew at the Police Officers’ Club in Kingston, last week,  Dr. Barnett questions whether after 50 years of Independence, the country needs to retain any of the “trappings of (a) colonial past and to foster any of the vestiges of the imperialist system,” which is represented by the Privy Council.

“Today, our legislative power has been freed of imperial control, but we still have the British Monarch as our Head of State. We still, in law, are obliged to pay obeisance to her; we still conduct our courts in the name of the Queen; we pass laws in the name of the Queen; and to a large extent, we still retain that image which is aligned to that colonial past,” he said.

“So, the question we have to ask ourselves is whether after 50 years, is it appropriate and proper that we should keep these things which are so aligned to that past,” Dr. Barnett added.

The Queen’s Counsel further asserts that the country ought to demonstrate it is fully independent by breaking all ties with this imperialist system.

The CCJ, which is the judicial institution of the Caribbean Community (CARICOM), was established in 2005 to serve the needs of the region as a final appellate court, to replace the Privy Council.  Jamaica is one of 12 signatories to the agreement that instituted the CCJ.  It is based in Port of Spain, Trinidad and Tobago.         

Despite being signatory to the founding Treaty, the country has been denied full accession to the regional court. The country’s attempt to formalise its participation was rejected 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, symbolising 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 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 CARICOM and International treaties, as well as a superior court of record with appellate jurisdiction.

Positing other reasons for acceding to the CCJ, Dr.  Barnett points out that the issues that would be brought to the Privy Council are no different from what can be brought to the regional body.

“At the moment, appeals to the Privy Council are in respect of firstly, any questions relating to the interpretation of the constitution; secondly, any case in which property of a certain value is involved; thirdly, cases in which any important principles of law are involved. Those same grounds of appeal to the Privy Council are the grounds which would be allowed for appeals to the Caribbean Court of Justice, if we access its appellate jurisdiction,” he notes.

Dr. Barnett also agrees with several other reasons put forward by Minister of Justice, Senator the Hon. Mark Golding at a recent JIS ‘Think Tank’,  one of which is that the CCJ will greatly benefit the average Jamaican who cannot afford to take a case to the Privy Council.

“It would be impossible to take an appeal to the Privy Council without being very wealthy, unless you were given some legal aid, in the case of persons who have been convicted in criminal cases and in capital punishment cases,” Dr. Barnett says.

“We are able to have legal representation because of a particular scheme of legal aid provided by volunteer lawyers in London. But if you have a case in which you were dismissed from your employment, or someone confiscated your house, you would have no such representation and it would cost you, I would venture to say, a minimum of $2 or $3 million to take an appeal to the Privy Council and if you lost…you would end up with another (cost of) $5 million or so,” he argues.

The Justice Minister had said that the average Jamaican finds it very difficult, if not impossible, to take a case beyond the local Court of Appeal. He said going the route of the Privy Council is also beyond the means of many Jamaicans, as they would 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.

Senator Golding pointed out that the CCJ, on the other hand, will be a “mobile court”, which will be a more accessible and affordable court for 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 counsels of litigants having to travel to the home base of the court, which is in Port of Spain,” he explained.

Another reason for accession to the CCJ, which Dr. Barnett endorses, is the fact that Jamaica has already paid for the use of the court, as required of signatories to the agreement. “That money was borrowed by all the Caribbean countries from the Caribbean Development Bank (CDB) and has been put in a trust fund, the returns on which are used to finance the operations of the court,” he explains.

Dr. Barnett also dismisses the notion of naysayers that it is not possible to obtain a high quality court in the Caribbean.

“In my profession, from the Norman Manley (Law School) down, there have been outstanding, leading barristers and solicitors who have been recognised throughout the world as being top lawyers and the CCJ has been set up in such a way that it allows us to choose from a pool, not only of the Caribbean, but indeed of the wider Commonwealth. So, the question of setting up a court with an adequate standard of jurisprudence is not in doubt, because we have the capacity to find able people,” he argues.

Dr. Barnett also concurs with Senator Golding that significant effort was put into the design of the regional court to ensure that it is free of political interference, noting as well that the CCJ has been set up “with the most careful mechanism for the appointment of judges."

“The Regional Judicial Services Commission, which appoints the judges, are completely divorced of any political influence or even political appointments to its membership. Even in England, this example of judicial independence in the mechanisms for funding and appointment is greatly admired and is being put forward as a model for the Commonwealth and we have had judges now in the CCJ who have demonstrated their excellence and their independence,” he notes.

Yet another reason why the CCJ needs to be accepted, Dr. Barnett says, is that it has a very important original jurisdiction, in addition to its appellate jurisdiction, in that it is the body which decides on cases related to the CARICOM Treaty in commercial disputes between the states and between individuals and the states.

“For instance (it was seen) recently where a Jamaican woman was alleged to have been maltreated in Barbados and she has been able to bring a case to the CCJ. She could not have brought a case like that to the Privy Council,” he says.

The CCJ currently hears final appeals from three jurisdictions in the region – Barbados, Guyana and Belize.

A key reason for acceding to the CCJ is aptly summed up by Senator Golding, who said: “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."