In a recent speech at a reception at the British High Commissioner’s residence in Kingston, to mark the 800th anniversary of the University of Cambridge, my esteemed legal colleague Lord Anthony Gifford QC, Barrister and Attorney-at-Law, called for real discussions to be held at national level for Jamaicans to determine whether the Caribbean Court of Justice (CCJ) should become the country’s final appellate court.
By his speech Lord Gifford ignited again the discussion on whether Jamaica should accede to making the CCJ Jamaica’s final court of appeal. The speed and direction in which Jamaica moves at any given time in respect of the CCJ issue has in the past depended on the colour of the government. The PNP, the party presently in Opposition, has long been open to the concept of the CCJ, whilst the governing JLP’s politics has, up until a recent statement by Prime Minster Bruce Golding in which he indicated that his Government may re-evaluate its position on the CCJ, always been lukewarm at best. The Prime Minister’s statement should be welcomed as acknowledging recognition of changing times. The JLP’s aversion to anything suggesting federalization of Caribbean states pre-dates Jamaica’s independence, CARICOM and certainly the present day reality of a strong European Union, of which ‘mother’ Britain is part.
As a fundamental lesson, Constitutional and Political Science students are taught Baron de Montesquieu’s principle model of governance of a democratic state. The theory is that the ideal model requires that there should be Separation of Powers between the three main limbs of government, namely; the Executive (government), the Legislature (parliament) and the Judiciary (courts). However, the status quo in Jamaica imparts a confused story as far as Montesquieu’s theory is concerned.
For Jamaica the facts are conflicting; Jamaica’s head of state is the Queen of England and its final court of appeal, the Privy Council. Both are based in a foreign Country, United Kingdom of Great Britain. It is not like this fact is over-looked by the British Law Lords either, in a now oft cited remark Lord Nicholas Phillips, the president of the UK Supreme Court, stated that the Law Lords on the Privy Council were spending a “disproportionate” amount of time on cases from former colonies, mostly in the Caribbean.
The reality is that as a Region we should not have over-stayed our welcome at the Privy Council. Lord Phillip’s comment focuses the minds of any country that might have cold feet or doubt their own ability to chose persons from amongst themselves who can act judicial with integrity and beyond reproach.
It seems to me that the CCJ is now the unavoidable destiny of English speaking Caribbean countries. As a matter of national pride Jamaica should not be seen to be the last Caribbean state to reluctantly release the apron-string of the Privy Council, particularly since as a Constitutional fact the arrangement with the PC was only ever meant to be an ‘interim transitional’ measure. However, this interim arrangement has now lasted 47 years because there has not been the cohesive political will to make something of our own in the Caribbean.
The time has now arrived for Jamaica to commit to the Caribbean’s own regional jurisprudence, after-all, it is an essential part of our self-determination as an independent country. If national politics requires that we jump over a referendum, lets get that done so our history of development can move forward. At this time the most counter-productive stance is to do nothing when you’re the person at the helm; direction is needed, change is required, the status quo is no longer acceptable lest Jamaicans should always be asked to qualify the concept of our country’s “independence”.
About the Author
Hamilton Daley is a practising Attorney-at-Law in Jamaica and Solicitor Advocate in England.
