Fears of interference in CCJ

“It’s full speed ahead,” said former Chief Justice Michael de la Bastide last week, commenting on the Privy Council’s decision to void Jamaica’s CCJ Acts. Mr de la Bastide, who will be the head judge of the Caribbean Court of Justice, was arguing that the Privy Council’s ruling did not affect the setting up of the Court within Trinidad and Tobago’s jurisdiction. And, with the Opposition United National Congress having given its support to the relevant Bill, it does now seem that the CCJ is bearing down on Caribbean citizens like a runaway locomotive. We put it this way because the manner in which our Caribbean politicians have treated with this important issue has not been confidence-inspiring.

Attorney General John Jeremie has asserted that the Jamaica decision “in no way affects the CCJ as an International Law Tribunal:” which is a bit misleading inasmuch as the Privy Council is still our final court of appeal. Jeremie also boasted that he had “followed closely oral arguments in the case and took great care to ensure, as promised, that our legislative process was immune to attack from any developments.” But exactly what changes he made to the Bill between November 2004, when the matter came up for hearing, and February 2005, when the judgment was delivered, Mr Jeremie did not specify. But this kind of vagueness, by all parties, has been typical of the debate on the CCJ. Indeed, the clearest and most precise comment thus far has been this negative 15-page judgment by the Law Lords.

Yet neither Mr de la Bastide nor Mr Jeremie thought it important to expound on a key aspect of the Privy Council’s judgment: to wit, the protection of the CCJ from politicians. In their ruling, the Law Lords pointed out that “…the independence of judges (or, put negatively, the protection of judges from executive pressure or interference) is all but universally recognised as a necessary feature of the rule of law.” They noted that the CCJ’s provisions listed did not depart substantively from existing legislation, but argued that the Privy Council enjoyed an independence that did not automatically accrue to the CCJ. More significantly, the new laws did not, in their opinion, provide sufficient protection to the CCJ.

“…the agreement may be amended, and such amendment ratified, by the governments of the contracting states, and such amendment could take effect in the domestic law of Jamaica by affirmative resolution,” said the Law Lords. “The risk that the governments of the contracting states might amend the CCJ Agreement so as to weaken its independence is, we hope, fanciful. But an important function of a constitution is to give protection against governmental misbehaviour, and the three Acts give rise to a risk which did not exist in the same way before.” We, too, hope that such fears are fanciful. But, given the way Caribbean politicians have approached the CCJ’s creation, it is clear that protection of CCJ judges from politicians is crucial. Until and unless  that happens, the CCJ will hardly inspire confidence in Caribbean peoples, who will continue to look to the Privy Council as a necessary safeguard to their fundamental rights.