March 2011 Volume 8

The Politics of Justice

David G. Batts
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It is said that there are no votes in Justice. Perhaps that explains why successive administrations of independent Jamaica have failed to adequately provide for our system of justice.

The courthouses across the island are woefully inadequate and in many instances run down. The human resource is expected to function in substandard conditions. Our Supreme Court judges have no dedicated personal assistants, most do not have their own offices, they do not have chauffeurs (the orderlies assigned serve only to escort them from the parking lot into court). Our Supreme Court library depends heavily on donations as funding for new acquisitions is inadequate. Jamaica has no publicly funded system of law reporting although up-to-date and accurate law reporting and indexing is a pre-requisite for any common law system of justice to function effectively. The backlogs, delays and inefficiencies which therefore characterize justice in Jamaica should surprise no one.

Given this state of affairs, Jamaicans should be wary about any proposal advanced by politicians to replace the Judicial Committee of the Privy Council with a Final Appellate Court right here in Jamaica.

A court gains its reputation by the consistency with which it administers justice according to law. The appointment of learned persons of integrity to a constitutionally protected judicial office will not suffice to ensure such justice. Adequate remuneration, reasonable working conditions and the provision of the necessary books and reading material are also pre-requisites. Is there any reason to suppose that a new court created within Jamaica will enjoy such privileges?

A court needs also to develop its collective experience. Jamaica cannot hope to match the collective experience of the Judicial Committee of the Privy Council which has hundreds of years of archival experience and whose judges [drawn as they are from the United Kingdom Supreme Court] preside over more cases and a wider array of legal subjects than do ours. Neither is a final appellate court in Jamaica likely to match the collective experience of a Caribbean Court of Justice. In addition, therefore, to our resource constraints, there is a very practical reason why Jamaica should not have its final appellate court within its borders.

There are sound and compelling reasons for the abolition of appeals to the Judicial Committee of the Privy Council. In the first place, that court is located in England and the cost to retain Counsel means the court is available only for the very wealthy, or those, like our death row inmates, who receive pro bono assistance from English counsel. Furthermore, our cultural differences are vast and it is to my mind inappropriate for an independent post colonial nation to continue to rely on the erstwhile colonizer for its final appellate court.

These negatives do not apply to the Caribbean Court of Justice. This court is the creation of the independent states of the Caribbean. Its judges are appointed by an independent commission. The Court is not dependent for its existence on annual budgetary subventions from the member states and is therefore on a much more independent financial footing than the other great regional institution, the University of the West Indies.

There are desirable improvements to the Treaty establishing the Caribbean Court and we should use this opportunity to lobby for those changes. The Jamaican Bar Association's recommendations for change are well documented.

I submit however that Jamaica should embrace the Caribbean Court and remove itself from the Judicial Committee of the Privy Council for the following reasons:-
  • The Caribbean Court of Justice will be more accessible to Jamaicans than the Judicial Committee of the Privy Council;
  • The collective experience of the judges of the Caribbean Court of Justice will be greater than any court Jamaica will be able to create given the condition of our economy and the quality of cases likely to come before it;
  • The Caribbean Court of Justice has arrangements for funding which render it independent of annual budgetary governmental support;
  • The Caribbean Court of Justice has an appointment process for its judges which is independent, fair and transparent;
  • The Caribbean Court of Justice is a court we can call our own as it was created by the region for the region;
  • Since its formation the Caribbean Court of Justice has delivered decisions of quality and it is fast developing an impressive array of judgments.

Jamaicans should therefore reject any suggestion for a final appellate court here in Jamaica. If the Privy Council is to be abolished we should support adoption of the Caribbean Court of Justice in its place.

DAVID G. BATTS
January 13, 2011

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