ccj

Is the CCJ a Trojan Horse?
Published: Sunday | December 26, 2010 jamaica gleaner
Priya LeversAshford W. Meikle, Contributor

In a recent address to the Cornwall Bar Association, Justice Patrick Robinson blamed a colonial mentality for the failure of Jamaicans to abolish appeals to the Judicial Committee of the Privy Council and embrace the Caribbean Court of Justice as the country's final court of appeal.

In advancing his arguments, he quoted Marcus Garvey, saying it was better to misgovern yourself rather than be governed by another.

The eminent jurist's views echo similar sentiments that were expressed just over a year ago by the president of the Court of Appeal, Justice Seymour Panton, who described people favouring a retention of the Privy Council as being "the very wealthy, murderers and the ones with colonial mentality".

As well intentioned as they are, the views of both judges are misplaced. There has been a tendency to intellectualise the Privy Council-CCJ debate, one that betrays the intelligentsia's belief that it knows what is best for the Jamaican people. Ironically, it may be argued that this paternalism is itself one of the vestiges of colonialism - backra massa knew what was best for his innocent and naive slaves.

Recent polls suggest that a majority of Jamaicans support the Privy Council as the country's final court of appeal, and with good reason. Twice, since Independence, the Jamaican government - in a calculated and cynical strategy - has launched a direct attack on the Constitution and the civil liberties of Jamaicans.

Serious breach

The 1977 case, Hinds v R, challenged legislation passed by parliament which established the Gun Court. Effectively, the act transferred the jurisdiction of the Supreme Court over criminal firearm offences to a tribunal of resident magistrates who did not enjoy the security of tenure of Supreme Court judges, as guaranteed in the Constitution. The legislation was a serious breach of the principle of separation of powers (as implied by the Constitution) between the judiciary and the executive.

In 2004, in a brazen and Machiavellian move, the Jamaican government attempted to abrogate the constitutional rights of Jamaicans when it rushed legislation through parliament to establish the CCJ as the country's final court of appeal. This was challenged in IJCHR v Syringa Marshall-Burnett, in which it was argued that if appeals to the Privy Council were abolished, the Constitution mandated a referendum to entrench the CCJ so that its judges would enjoy the security of tenure afforded to our Supreme Court and Court of Appeal judges in the constitution.

Ironically, in both cases, it was a 'foreign' court - far removed from the corruption and graft of our politics - that stood as the bulwark for the constitutional rights of Jamaicans against government misbehaviour. Indeed, if an argument is to be made for getting rid of the vestiges of colonialism, it is that we should dismantle the Westminster system of government. It is Britain's lasting legacy to her former colonial empire, and it is one which has engendered executive dictatorship (with too much power concentrated into the hands of the prime minister) and, in the case of Jamaica, the fight for scarce benefits and political spoils.

Nationalism has always been the cri de guerre of the proponents of the CCJ. However, it is an argument which stands on feet of clay. On that issue, Marcus Garvey is wrong. Misgovernment is unacceptable and against the rule of law. Robert Mugabe is Zimbabwe's modern-day Ozymandias. It is intellectually dishonest to argue that the Privy Council is comprised of 'foreign' judges when the CCJ itself is chartered to invite other Commonwealth judges to sit in the court. The argument also ignores the fact that four Caribbean chief justices, including Jamaica's own Justice Zacca, have been appointed to the Privy Council.

Given our turbulent and violent political culture, it is a testimony to the integrity of our judiciary that it has, for the most part, remained unscathed and protected from poli-tical interference and corruption. Yet, as the IJCHR case has shown, there is a real risk that the judiciary is susceptible to the emotional appeal of nationalism. There is also the belief that our local courts, at times, take a narrow approach in its interpretation of legislation concerning constitutional rights (the Hinds case), human-rights issues (Pratt and Morgan) and the liability of the state when its servants abuse their power (the Clinton Bernard case). In each case, the profoundly unsatisfactory judgment of our local court was overturned by the Privy Council, ensuring justice for poor and disenfranchised Jamaicans.

It may be argued that the articles of the 2001 Agreement Establishing the Caribbean Court of Justice are so rigid in their provisions that political interference in the court and the manipulation of judges by Caribbean politicians will be virtually possible. Of course, it is not without a sense of irony to note that the agreement itself was written by politicians. In any event, almost all the judges will be drawn from a pool of regional jurists who, ultimately, are appointed to their local judiciary by their respective heads of government. As an example, in Jamaica, members of the judiciary are appointed by the Judicial Service Commission. Yet, four of the six members of the commission hold their positions ultimately on the recommendation of the prime minister. Services commissions are protected in the Constitution but, as the Stephen Vasciannie imbroglio demonstrated, the prime minister can force the resignation of members of a service commission at his pleasure.

Eminent jurists

There is no doubt that the region is not short of eminent jurists who are equal to their peers worldwide. However, the actions of some Caribbean judges invariably bring into question their objectivity and political agenda. In Cayman, recently, the Privy Council ruled that Justice Priya Levers should be removed from the bench as a result of her history of misconduct in making derogatory statements about Jamaican women who appeared in her court.

Earlier this year, Trinidadian High Court Judge, Justice Herbert Philip Volney (a strident critic of the former Patrick Manning government while the judge was on the bench), resigned to run on the winning ticket of Prime Minister Persad-Bissessar. In Jamaica, we have our own example, with former RM judge, Marlene Malahoo-Forte, who was appointed to the Senate.

Whether or not the CCJ will consider itself bound by previous Privy Council decisions remains to be seen. The position of the High Court of Australia is that Australia, having left the Privy Council, is not bound by previous, established rulings. In the context of the Caribbean, this is frightening. It is for this reason why the sceptics of the CCJ regard it as a Trojan horse designed by Caribbean politicians to launch an assault on our civil liberties and human rights.

It was, in fact, dissatisfaction with the Pratt and Morgan ruling and a desire to expedite hanging which provided the catalyst for the previous People's National Party government (and a number of other Caribbean governments) to hastily pass legislation to establish the CCJ as our final appellate court. But, until the Jamaican Government looks into the mirror and, like Caliban, recoils at its revolting image, many Jamaicans will feel quite justified in continuing to believe that the scale of justice is more likely to be balanced 5,000 miles away, in London, among a venerable group of 'foreign' men.

Ashford Meikle is a law student and a member of Jamaicans for Justice. Feedbackmay be sentto columns@gleanerjm.com