Jamaica's London appeal court dilemma
- 3 August 2012
- From the section World
Jamaica is celebrating the 50th anniversary of independence from Britain next week. The government in Kingston is talking about becoming a republic and is also looking at ending a legal legacy of the British Empire.
Earlier this year the Jamaican prime minister pledged to make the country a republic.
Portia Simpson Miller, whose People's National Party (PNP) took power in a landslide election in December, said it was time "to sever the ties".
She trod carefully, saying: "I love the Queen. She's a beautiful lady."
However, she added in patois: "But I think time come."
Mrs Simpson Miller also promised to switch from the Judicial Committee of the Privy Council (JCPC) in London to the Caribbean Court of Justice (CCJ) as Jamaica's highest court of appeal.
She described it as time to "end judicial surveillance from London".
The JCPC is a legacy of the British Empire when men and women convicted in the colonies could appeal, as a last resort, to London.
In April, Trinidad & Tobago's Prime Minister, Kamla Persad-Bissessar, announced that country would be switching over to the CCJ as the country's highest court of appeal in criminal matters.
In 2002 I attended a hearing of the Privy Council's judicial committee, which discussed the fate of Michael Pringle, who was on Death Row in Jamaica after being convicted of murdering an American musician.
The CCJ came into existence in 2005 and is based in the Trinidadian capital, Port of Spain.
The bulk of its workload is civil disputes involving people from the 12 countries which are signatories.
Earlier this year it sat in Barbados - the first time it had sat outside of Trinidad - to hear the complaint of Jamaican tourist Shanique Myrie, who accused Barbadian border officials of assaulting her during a body search.
But only three nations - Barbados, Guyana and Belize - have so far replaced the JCPC with the CCJ as their final criminal court of appeal.
Last year the outgoing president of the court, Michael de la Bastide, said it would be a "regional catastrophe" if the CCJ were to fail because of under-utilisation of its appellate jurisdiction.
When the CCJ came into existence it was seen by many critics as a "hanging court" which would fast-track executions which were being blocked by the Privy Council.
But CCJ spokeswoman Seanna Annisette told the BBC: "In terms of the CCJ being a hanging court, which is a claim which we have been plagued with, I should point out the court only upholds the law in those countries."
In 1965 capital punishment was abolished in Britain but Jamaica, which became independent three years earlier, retains it on its statute books.
Nowadays very few murderers are sentenced to death and Jamaica has not executed anyone since 1988.
Only seven people are on Death Row.
Amnesty International's annual report on Jamaica highlights the fact that in April 2011 the Jamaican government adopted a Charter of Fundamental Rights and Freedoms.
This included "a provision intended to reverse the effects of a landmark 1993 ruling" by the JCPC which ruled that prisoners who were on Death Row for more than five years should have their sentences commuted.
But an Amnesty International spokeswoman said it was up to each country to decide who should be their ultimate court of appeal.
The opposition Jamaica Labour Party (JLP) believe there should be a referendum on both issues.
Arthur Williams, a JLP senator, said: "Our position has been that a change of this nature is of such public importance that the people should have a say and that has been our position for 15 years."
He added: "It is very much a live issue but our position has been stated very clearly."
But last month Justice Minister Mark Golding wrote to the opposition telling them the government planned to table the relevant legislation in the Jamaican parliament before it rose for the summer recess.
Mr Golding wrote there was no need for a referendum and all that was necessary was for a two-thirds majority in parliament.
He concluded: "The government and the people of Jamaica expect that no legislator will seek to withhold his or her vote, as we signal our maturity on the occasion of this significant milestone of 50 years as an independent nation."
Lord Anthony Gifford QC, an English hereditary peer and a barrister who represented the Guildford Four and the Birmingham Six before setting up a law firm in Jamaica in 1991, is perhaps uniquely placed to assess the legal landscape.
He told the BBC: "I'm in favour of the move to the CCJ. It would be far more accessible. At the moment the only people who can appeal to the Privy Council are those with a lot of money or those with none, who are on Death Row."
Lord Gifford, who has taken both criminal and civil appeals to the Privy Council's Judicial Committee, said the CCJ's track record was "quite good so far".
He praised the "very professional way" the CCJ had dealt with the case of Jeffrey Joseph and Lennox Boyce, who appealed against their execution by Barbados.
Dr Paul Ashley, a Jamaican lawyer and political commentator, says the debate is primarily political and about the pace of formal decolonisation.
Among Jamaicans, he says, there is a certain reluctance to put issues of local justice in the hands of other Caribbean nationals.
The feeling, he says, is "better to let it remain with the tried, tested and proven British".
But Dr Ashley adds: "The current government enjoys considerable political capital.
"It could expend some in advancing the pace of decolonisation. Given the dire global economic outlook and the systemic dependency, then the move away from the Privy Council to the CCJ may be its only lasting political legacy."
A JCPC spokesman told the BBC that the London court of appeal would exist as long as Commonwealth jurisdictions wanted to use it.
"We don't lobby for people to stay with the JCPC," the JCPC spokesman said.
"It is a legacy of the British Empire but it is also a valued part of what the Commonwealth can offer."