Trojan horse?

Marc Ramsay, Contributor

It was with great interest that I read the article published in The Sunday Gleaner (26/12/10) titled 'Is the CCJ a Trojan horse?' by law student Ashford Meikle. While discourse on the Caribbean Court of Justice is essential for ensuring that what is in the best interests of the Caribbean people is acted upon, Mr Meikle unfortunately reached several conclusions that either overlooked certain facts, or did not exhaust the logic required in coming to a conclusion on the issues.

I am even more disappointed that Mr Robert Collie, an attorney-at-law and learned tutor at the Norman Manley Law School, sounded unqualified support for the article in a subsequent letter to that newspaper ('Weak case for CCJ' - 29/12/10). I assume that his strong support was unintentionally influenced by his support for a referendum. There is cause for concern as this issue should be discussed in an objective manner without undue influence.

Discussions on whether to adopt the CCJ should not be confused with holding a referendum, which Mr Collie so loudly defends. A referendum is a decision which should follow discussion. In and of itself, a referendum will not automatically result in discourse in Pepper, St Elizabeth, or anywhere else in Jamaica, for that matter.

While the involvement of the people in deciding whether the CCJ is adopted as the final court of appeal is highly desirable, there is the high risk that the issue will become a political one, rather than one based on fact. Whether or not to adopt the CCJ should not become an issue of whether people prefer Orange or Green but, rather, whether the facts demonstrate that the court is a competent alternative to our current arrangements.

It is on this basis that Mr Meikle's arguments can be refuted. First, the 'colonialist argument', decided either way, does nothing to decide the issue itself. It is illogical to refute all arguments for the CCJ solely on the footing that nationalism is not sufficient grounds. However, I differ from both Mr Meikle and Mr Collie in that I believe that nationalism is a very good reason for having your own court. However, nationalism itself cannot buy justice or prosperity.

Therefore, in moving away from the Privy Council, what is critical is ensuring that the interests of justice are not affected if Jamaica moves to the CCJ. A decision on whether to adopt the CCJ should, therefore, not be decided solely on the basis of nationalism or regionalism, but on the basis of competence. Logically then, if the CCJ is just as competent as the Privy Council, nationalism becomes a secondary basis on which proponents can argue for the court.

Corrupt judges

Second, as far as I am aware, there is no 'history' of corrupt judges in the Caribbean. This argument leads me to believe that Mr Meikle does not trust the competence of Caribbean judges in general. The example cited from Cayman was not a corrupt judge, but a disrespectful judge. Mr Meikle did not apply his acceptance of the fact that there is a competent pool of jurists in the Caribbean from which to appoint CCJ judge.

CCJ judges are selected without political influence from standing judges and jurists such as Justice Winston Anderson, who was a University of the West Indies professor. Mr Meikle should note that if a judge in one jurisdiction (Mr Meikle referred to a judge in Trinidad and Tobago) chooses to enter politics, this is not a reflection of nefarious political influence held by all judges, but rather the decision of one judge.

It is critical to acknowledge that judges, whether sitting on the Judicial Committee of the Privy Council in England, or the CCJ, can decide whether to conduct themselves in a manner in keeping with their appointment, that is, whether to be just, ethical, and competent.

Their Lordships in England were not specifically bred and secluded from the vices and negative influences of this world and then magically installed as judges; they are, thus, just as susceptible to be influenced by politics. Furthermore, there is no reason to conclude that this pool of competent Caribbean judges will be unwilling or incapable of adhering to the law in a manner that would appropriately stand as a "bulwark for the constitutional rights of Jamaicans against government misbehaviour".

Third, no number of overthrown cases from the Caribbean lends to a generalisation that Supreme Court judges here are less competent than the lordships on the Privy Council. The fact is that only a handful out of thousands of cases have legal issues that warrant appeal at the Privy Council level. The judges of the CCJ are highly respected jurists, and their qualifications and reputations can perhaps only be opposed by a distrust of local judges apparent in Mr Meikle's article which, some would argue, is ironically 'colonialist'.

Fourth, while there have been political utterances which lend themselves to the view that some politicians had hoped the CCJ would provide a catalyst for hanging, it is misleading to believe that this is the only reason in favour of the court's establishment. The idea for a regional appellate court predates the Pratt and Morgan decision, and seen in R v Boyce and Joseph, there is no reason to believe the CCJ will manipulate the law in favour of hanging.

To alter Garvey's words quoted by Mr Meikle, it is better to govern oneself when one is capable of doing so competently than be governed by another. While regionalism is not the only grounds for adopting the CCJ, it provides a sound basis for moving from the Privy Council to an equally competent regionally established court. When we examine the competence of the CCJ, let us do so on the basis of fact after research.

Marc Ramsay is a student of the Norman Manley Law School, Mona, Jamaica, and a member of the One Caribbean Integration Movement. Email feedback to columns @gleanerjm.com and contact@mframsay.com.