Editorial | Chuck, CCJ and Sir Shridath

Two statements by Delroy Chuck in Parliament last week are in need of clarification, and perhaps, with respect to the second, a correction of the record.

In his contribution to the sector debates, Mr Chuck, the legal and constitutional affairs minister, addressed the old debate over whether Jamaica should leave the Judicial Committee of the Privy Council (JCPC), and if it does, what should be the island’s final court. He expressed a preference for a domestic, or Jamaican final court.

What is not absolutely certain is on whose behalf Mr Chuck spoke, also it is presumed that when ministers speak in these debates, they carry the imprimatur of their official positions and the weight of the collective responsibility of the Cabinet, although they also tend to veer constituency issues.  In other words, is Mr Chuck’s statement about a Jamaican final court, having been delivered in Parliament, now formal government policy?

On the question of correcting the record, the matter is the need for a fuller and nuanced discussion of the late Shridath Ramphal’s statements about the Caribbean Court of Justice (CCJ) in the context of Caribbean integration in the face of Mr Chuck’s implied claim that Sir Shridath saw the court as a kind of Trojan Horse towards the relaunch of the West Indies Federation.  Jamaica’s withdrawal from the Federation in 1962 led to its collapse.  Mr Chuck is clearly intent on reviving and exploiting old emotions.

Jamaica is among a handful of former colonies, mostly in the Caribbean, that still send cases to the Privy Council, which is based in London and uses the judges of the UK’s Supreme Court.

Technically, when the JCPC hears a case from Jamaica it does so as a committee of the advisory body of the British monarch (King Charles III), who under the Jamaican Constitution is the sovereign of the island and its official head of State.  In essence, the appeal is a prayer to the sovereign.

There is cross-party consensus (two years ago the idea was backed by six in 10 Jamaicans) that the island dumps the monarchy, become a republic and repatriate its sovereignty.  The political opposition says that simultaneous with this move should be an end of appeals to the Privy Council, which could not be a symbolic closing of the circle on colonial authority over Jamaica’s sovereignty, but a real expansion of justice to the vast majority of Jamaicans with no real prospect of filing cases with the JCPC.

That logic is unimpeachable!

The question has been what, if anything, should replace the Privy Council, notwithstanding that over two decades ago Jamaica was party to establishing the Caribbean Court of Justice (CCJ), which, in its original jurisdiction, interprets the treaty of Caribbean Community’s (CARICOM) single market and economy.  However, the CCJ also has a civil and criminal arm, to which five CARICOM members have acceded.

For a long time, the governing Jamaica Labour Party (JLP) was in favour of retaining the JCPC or waffled on the matter.  Two years ago Prime Minister Andrew Holness said in a morning lifestyle television interview that “our final court should be a Jamaican final court” rather than the CCJ.

However, it was never clear that this was formal government policy and, until Mr Chuck’s intervention last week, it was never explicitly declared in Parliament.

“I don’t mind if the final court appellate court is Jamaicans and five Caribbean judges sit, but it must be a Jamaican final court,” Mr Chuck said in a wide-ranging report on his ministerial portfolio, in which he called on the opposition to relent on relent on linking on the move to a republic and an exit from the JCPC.

The opposition support is necessary for the former given the constitutional requirement that a constitutional amendment to remove the monarch must have two-thirds support in both chambers of Parliament, followed by a referendum.

Removal of the JCPC can happen with simple majorities in the House and the Senate, but the Privy Council ruled several years ago that replacing it with a court to Jamaica’s Court of Appeal would require deeply entrenching the new court, requiring two-third majority votes.  Given the configuration of the Senate, the two-thirds stipulation means that the passage of any bill requiring a special majority needs the vote of at least one Opposition member. Indeed, an attempt in the early 2000s to install the CCJ as Jamaica’s final court foundered on this demand.

The CCJ has received global accolades for the quality of jurisprudence. It also has two other defining elements: its structure for appointing judges, with a wide swathe of independent regional institutions   represented on its commission, makes it one of the world’s most insulated courts.  That insulation is reinforced by its financing mechanism: a regional trust fund that was subscribed by Caribbean governments at the court’s establishment.

In a loosely paraphrasing Sir Shridath that CCJ “is the beginning to reintegrate the Caribbean” and asking Jamaicans: ‘Is that what you want?’ Mr Chuck sought to stoke fears by reviving the perceived spectre of the federation.  A loss of Jamaica’s sovereignty.

In calling for deepened collaboration and stronger implementation mechanisms by CARICOM, the Sir Shridath-chaired West Indian Commission in its i992 report on advancing the community said: “We are proposing not a surrender of sovereignty but a pooling of it in certain defined areas for the greater good of all. The alternative for each of us is not glorious independence but a slow decline into irrelevance, where our juridical sovereignty becomes an empty shell.”