Significant hints of change on the CCJ

A significant statement by Prime Minister Bruce Golding this week which could well signal an important and pragmatic policy shift on the part of the Jamaica Labour Party (JLP) administration appears, somehow, to have sailed below the radar of national discourse.

Addressing students at the Mona campus of the University of the West Indies on Tuesday night, Mr Golding said he was considering a re-evaluation of Jamaica's position on the Caribbean Court of Justice (CCJ).

"I put it no stronger than that," the prime minister said. "But I think we are now in a position where that proposal (Jamaica's participation in the court) can be re-evaluated."

This is a big deal, demanding of a painful swallow by Mr Golding. We hope the PM's concession will not be undermined by either Opposition hubris or self-righteous glee - no matter how entitled the People's National Party may feel to any such posture.

The JLP, it wil be recalled, was vehemently against the establishment of the CCJ as Jamaica's court of last resort, which would entail it replacing the Judicial Committee of the Privy Council that is based in London.

Whatever intellectual and practical concerns that he might have had with the court, we suspect that opportunistic political considerations were important to the calculations of the former JLP leader, Edward Seaga, when he crusaded against the CCJ, questioning the likelihood of its independence and its quality of jurisprudence.

In the end, the JLP was party to a challenge of the constitutionality of the CCJ at the Privy Council, whose judges held that while Parliament, by simple majority, could end appeals to their court, the legislators could not so easily replace the Privy Council with a new court. A superior court to the Court of Appeal, they held, unlike the Privy Council, would have to be similarly entrenched. In other words, a law establishing the CCJ as Jamaica's final court required a special parliamentary majority and popular endorsement in a referendum. Those are difficult hurdles to scale in the context of Jamaican divisive political environment.

However, a number of factors are concentrating minds about Jamaica's future in the Privy Council - not least being the recent lament by the president of Britain's new Supreme Court, Lord Nicholas Phillips, about how much time Privy Council cases demand of his judges. He even floated the idea of using judges of lower courts to hear cases from these outposts. While Justice Phillips has not told us to go, there is more than a hint in his remarks.

Trust fund

At the same time, the Jamaican Government contributed US$26 million to a trust fund that finances the CCJ, the mode of appointment of whose judges, the Privy Council conceded, gave them greater insulation from political interference than judges of most courts. This was indeed the case before the challenge at the Privy Council.

Rulings by the court, in its criminal and original jurisdictions, the latter as interpreter of the treaty establishing the Caribbean Community, suggest that the CCJ is not, as some feared it would be, an institution beholden to governments at the expense of private citizens.

Perhaps we can now engage a robust, frank and intellectually sound debate on the value of the court and what might be political quid pro quo on the way forward.