GUYANAS LEAD TO CARICOM ON THE CCJ Guyana Chronicle, News 18 February 2005 By Colin Bobb-Semple (The writer is Senior Lecturer, Inns of Court School of Law, London; Founder member, Guyana Law Association (UK); attorney-at-law) JAMAICA is currently experiencing a constitutional problem. The government passed legislation designed to establish the Caribbean Court of Justice (CCJ) as its final court of appeal in place of the Privy Council (PC), without complying with the provisions of the constitution. A significant breach was the failure to attain the votes of not less than two-thirds of all the members of each House, namely the Senate and the House of Representatives. The legislation was also bound up with legislation to provide for Jamaica’s access to the CCJ’s original jurisdiction on interpretation of the Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy (CARICOM Treaty). The decision of the PC on 3rd February 2005, that Jamaica’s Judicature (Appellate Jurisdiction) (Amendment) Act 2004, the Caribbean Court of Justice (Constitutional Amendment) Act 2004 and the Caribbean Court of Justice Act 2004 were not passed in accordance with the procedure required by the Constitution and were accordingly void, was extremely embarrassing for the government of Jamaica. The problem encountered by Jamaica has developed because the government was unable to attain the requisite two-thirds majority in both houses of Parliament. Some CARICOM countries, e.g. Trinidad and Tobago and Dominica have been encountering this problem. The problem has had its genesis in the retention by those states of the PC as their final court of appeal, notwithstanding that states such as Trinidad and Tobago and Dominica, had become republics. Guyana did not encounter the problem, as it was the only CARICOM state which had abolished final appeals to the PC. Numerous arguments have been advanced in relation to the pros and cons of the PC vis-à-vis the CCJ. IN FAVOUR OF THE PC Some of the arguments in favour of the PC are as follows:- - the jurisprudence has developed over the centuries in relation to various Commonwealth countries and the Caribbean benefits from that wealth of knowledge and experience. - the Judges are less likely to have any conflict of interest and would therefore be more impartial and independent. - the system is not very costly for the Caribbean. The major costs are for travel, accommodation, subsistence and correspondence. - there are many lawyers, including QCs and large firms of solicitors in England, who are willing to undertake cases on a pro bono basis and Caribbean applicants can benefit from that expertise. - a significant part of the European Convention on Human Rights was incorporated into the domestic law of England and Wales on the 2nd October 2000. The provisions have had a persuasive influence on the decisions of the PC. AGAINST THE PC Some of the arguments against the PC are as follows:- - its remoteness in respect of its distance (over 3,000 miles) from the Caribbean and the Judges unfamiliarity with Caribbean customs, culture and dialects. - the length of time (sometimes years) it takes for appeals to be heard, is frustrating for applicants and respondents. - the costs of the proceedings are prohibitive and applicants, especially those on death row, often cannot afford to instruct their local lawyers to represent them, and rely on pro bono representation by British lawyers whom they have not met. - the PC is a relic of slavery, imperialism and colonialism and is an anachronism which has little relevance to the objectives of nations following emancipation and independence. IN FAVOUR OF THE CCJ Some of the arguments in favour of the CCJ are as follows:- - most of the countries in the Caribbean have been independent for over 25 years and it is high time that a final court is established in the region. - it will cost less for parties to pursue proceedings in a court located in the region. - there are likely to be fewer delays, and proceedings should be concluded more speedily. - Judges will possess local knowledge and will be familiar with Caribbean customs, culture and dialects. - the CCJ would be well placed to lay down guidelines for domestic courts throughout the region. - the CCJ will be itinerant and sittings will take place in various locations, with greater accessibility to its users. AGAINST THE CCJ Some of the arguments against the CCJ are as follows:- - the cost of establishing and running the Court will be substantial and developing nations are likely to have greater priorities. - there is direct involvement by politicians, i.e. Heads of Government of the Contracting CARICOM Parties, in the appointment of the President of the CCJ and that could compromise the independence and impartiality of the Judiciary. - conflicts of interest are likely to arise and Judges will be required to declare any interests. A lesson is to be learned from the case of Pinochet in the House of Lords in which one panel of that court criticised Lord Hoffmann for failing to decline to sit at one of the hearings, notwithstanding the fact that he and his wife had connections with Amnesty International, one of the parties in the case. - the Jurisprudence of the Caribbean has not yet sufficiently developed to provide enough Judges of the calibre required for such a Court. - British lawyers are unlikely to participate on a pro bono basis in proceedings in the CCJ to the extent of their contributions to PC proceedings, with the consequent loss of that expertise. GUYANA’S LEAD TO CARICOM The solution to the constitutional problem facing many CARICOM countries in establishing the CCJ as the final court of appeal, in place of the PC, was provided by Guyana 35 years ago, when appeals to the PC were abolished. Guyana became a republic on 23rd February 1970 and the Court of Appeal of Guyana became the final court of appeal. Guyana’s precedent ought to be followed by Jamaica, Trinidad and Tobago, Dominica and other CARICOM states, firstly, by the abolition of final appeals to the PC; secondly, by the enactment of legislation to access the CCJ in the exercise of its original jurisdiction; and thirdly, by the enactment of legislation to provide for the CCJ as the final court of appeal, subject to compliance with the constitutional requirements of the states concerned.
Posted on: Sat, 23 Nov 2013 01:17:57 +0000
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