KINGSTON, June 18, CMC – The outgoing principal of the University of the West Indies law school here, who is set to be Jamaica’s next ambassador to the United States, has rejected the idea of Jamaica going it alone in setting up a final court of appeal as “unworkable” and gave support for the Caribbean Court of Justice (CCJ) replacing the London Privy Council, the Jamaica Observer said on Monday.
Professor Stephen Vasciannie, a former deputy Solicitor General of Jamaica and an expert in international law, leaves his post as principal of the Norman Manley Law School to replace Audrey Marks as Ambassador to the US in August. He told the paper there was a “stronger case” for Kingston joining Barbados, Belize and Guyana in replacing the ‘law lords’ in London, with the justices of the Trinidad-based CCJ.
The Judicial Committee of the Privy Council, as the court is formally titled, is a reconstituted panel of judges from the UK Supreme Court, which has served as the court of last resort for Jamaica since independence almost 50 years ago.
But accession to the court has become a hotly contested political issue here and in other Eastern Caribbean countries that are yet to submit to the CCJ in its appellate jurisdiction.
“Some have proposed a Jamaican final court. But the case for the CCJ is stronger. First, the CCJ is able to draw from a wider pool of judicial talent and perspectives. Second, the CCJ helps to underline the fact that Caribbean legal systems are similar, and reflect mutually enforceable cultural bonds. Third, the sharing of costs for the court ensures that the highest court reflects the highest standards. And, fourth, the CCJ arrangements have been fully in place for almost a decade now: there is no need to dismantle these arrangements in order to have a Jamaican final court,” he said in an Observer interview.
In 2004, as part of the Jamaican government’s legal term, Vasciannie argued before the Privy Council, the current court of last resort for Jamaica, for the validity of the CCJ in the death penalty case of Lambert Watson v. The Queen.
In their decision, the law lords struck down Jamaica’s mandatory death penalty for murder as unconstitutional. But in a 2009 paper, Vasciannie argued that the decision intervened on “judicial certainty” in Jamaica’s courts, and led to fragmentation in Caribbean death penalty law and conflicts in decisions between the Privy Council and the CCJ.
“I am in support of the CCJ being the final appellate court in Jamaica. It’s a little known fact, but I was one of the lawyers representing the government of Jamaica before the Privy Council, trying to establish the constitutional validity of the CCJ in Jamaican law. Both at the personal and professional levels, I have sought to promote the CCJ in Jamaican law,” Vasciannie told the Observer.
In the interview, the law professor-turned-diplomat argued psychological, practical and financial reasons for his support of the CCJ.
“I start from the proposition that the quality of academic study and legal appreciation in the Caribbean matches anywhere else in the world, but some of us hesitate to accept this and we perceive that somehow the Privy Council is better, because, somehow, English systems are better.”
“The reason we started having appeals to the Privy Council is because of the colonial link. The colonial link is broken, well why do we continue with the Privy Council?”
He said the cost of litigation for appeals to the CCJ was “much cheaper” and suggested the possibility of itinerant CCJ justices hearing cases in Kingston, just as they have been doing since April as they hear arguments in the current case of a Jamaican woman, Shanique Myrie, who is suing the Barbados government under the CCJ’s jurisdiction over the Caribbean Community (CARICOM) treaty.
“In the Shanique Myrie case, you will recall that the CCJ moved to Barbados to hear the case, so that the cost to a litigant in the Caribbean is likely to be much less if we have our final appeals here,” Vasciannie said.
“It’s cheaper for the litigant. If I want to bring a case to the Privy Council now, it will cost me more, just by virtue of distance, than if I take a case to the Caribbean.”
Vasciannie also brushed aside notions of under-funding or governmental interference in the CCJ, which is financed by a 100-million-US-dollar trust fund that is administered by the Caribbean Development Bank (CDB).
“The governments are paying back the loan, but the administration is out of the hands of the governments. Why is this important? If the court makes a decision a government doesn’t like, then the government can’t say, ‘well, we want back our money’.
“If the governments fail to pay back the loan, they will fail in respect of an obligation between themselves and the CDB. And if you fail on a CDB obligation, then every loan you have with the CDB falls due. So governments would think twice about that because it’s then bigger than just the court loan. The court has made decisions that I am sure have not suited the Governments, and continues,” he told the Observer.
On her inauguration in January as prime minister after the December 2011 general elections, Portia Simpson Miller promised to remove the replace the Privy Council as the final court of appeal.
While jurists and legal experts have hailed as the court as a successful working model for international courts, it remains underused as an appeal court but continues to function in its original jurisdiction over the CARICOM Treaty for all 15 member nations.