A matter of national self-respect and access
IT is the hallmark of democratic governance that everyone who cares to should have a voice in matters pertaining to the welfare of a nation. This is true of any far-reaching policy that will affect the lives of citizens for a long time. The present debate about the country’s final appellate jurisdiction is a case in point.
Leader of the Opposition Mark Golding seems to have taken a stolid view that it is either the Caribbean Court of Justice (CCJ) or nothing at all. He has refrained from signing off on the report of the Constitutional Reform Committee (CRC) because it does not include the CCJ as a point of discussion. He seems wedded to the belief that the CCJ is sacrosanct and represents the best option for Jamaica in the future.
Others, of course, including this writer, disagree. For me, Jamaica’s final appellate court revolves around two fundamental principles which speak to the very heart of any respectable legal jurisprudence. The first has to do with access, which, by definition in this instance, is the ability of any citizen within a judicial boundary to easily take advantage of the provisions of the law which govern him or her. This relates to physical access, but it also relates to monetary considerations and a citizen’s ability to pay for the justice they require.
When it comes to physical access Jamaicans presently have to endure the insult of having to obtain a visa to travel to the country in which their final court sits. Read that sentence again and tell me if as a self-respecting Jamaican it does not make your stomach churn. As far as I know, it is not easy to get a visa from the British Consulate. And even if you get the visa, you have to make travel arrangements, which are very expensive, to get to the UK, not to mention accommodation if you do not have a relative living near the court with whom you could “kotch”.
Yes, I understand the argument being sold to us about digital access, but access for whom? Can poor people in any deep rural district in Jamaica ever consider that this could really apply to them? If they are not able to, are we to conclude that it is only the richest among us who can take advantage of this socalled access? It is a canard that is being floated by the Privy Council (PC) through Lord Reed to justify its relevance.
No Jamaican living anywhere in the country should have this kind of impediment placed in his or her path to secure justice. He or she should be able to take a taxi from anywhere in the island and travel to the address of the final court. The trauma of losing a case is bad enough, but to be further saddled with these additional costs is a burden too hard to bear if they really want to press for redress in a final court.
Apart from physical access to the court, the monetary consideration carries equal weight. Lost in the discussion of appeal to the privy council is the absence of any granular breakdown of the costs that a person faces if he or she should be brave enough to take his case to the PC. Sit with any lawyer who is handling your case and you would be shocked at the figure he or she arrives at after computing the legal costs you will face if you want to proceed. And this does not include air fare, residential provisions, or per diem costs if you have to travel to the jurisdiction. The legal costs alone, I believe, are prohibitive to at least 90 per cent of Jamaicans. The truth is that, whether for the PC or the CCJ, close to over 80 per cent of Jamaicans cannot afford to have their cases sent to either body. The cost of appeal is very onerous to the ordinary person, even if the court is in Jamaica. Legal costs would be expensive enough, but it would be less of a burden to bear than suffering the add-ons to travel to a foreign jurisdiction.
The second imperative for me turns on the matter of national self-respect and collective self-esteem as a people. I get very annoyed with the argument that we are not yet ready, that as a people there is too much political anancyism that will get in the way of dispensing justice, or that the justice system is in too much of a ramshackle state for us to handle our own affairs.
When I hear these arguments, I ask the question: If not now, when? How much longer do we have to wait to reach the magical moment when our judicial infrastructure is at such a pristine level it allows us to handle our own appellate jurisprudence? If the Minister of Justice Delroy Chuck is correct, the court and justice system are presently at their best ever.
No one can gainsay the fact that we have made tremendous strides in the rehabilitation of our judicial system. Chief Justice Bryan Sykes has done a commendable job in improving the court system and enhancing the delivery of justice to levels that did not exist before. We can all agree that there is much more work to be done, but let us not ignore that which has been achieved and what we are yet capable of achieving. We must continue working to improve the judicial system. It is always a work in progress as is the case for any country, including the mighty USA. Perfection will never be achieved, but a reasonably good infrastructure that can guarantee access to all Jamaicans can be.
Finally, moving our apex court here is a matter of self-respect and enhancing our self-esteem as a people. Talk to even the worst dissenters and they will tell you that we have some of the brightest legal luminaries in Jamaica who can stand their ground in any country in which they reside.
I must repeat that over 80 per cent of the cases that are sent to the Law Lords in England are upheld by them. This means that we have to be doing something right in following the laws and rendering judgments that are right by the people here in Jamaica. Insofar as this is the case, it appears to be an unimpeachable fact that speaks to the integrity of those operating in the system.
There will always be attempts by the nefarious to corrupt the system, and so far it has withstood the worst depredations of those who would want to do so. Just as we worked to elevate our election standards to an internationally accepted/ recognised level, so can we work to make our appellate jurisdiction the envy of the world.
This is not far-fetched. We only need to summon the courage to be ourselves and know that no one is going to esteem us better than we do. This may be the time to have a more fulsome discussion about the matter.
Prime Minister Andrew Holness has stated the Government’s position on bringing our apex court here and not leaving it squatting in a halfway house somewhere in the Caribbean. Can we have sufficient discussion on the matter and include it as an item for our next general election, in the format of an indicative referendum as the prime minister suggested?
Let the people decide! Our collective self-respect and self-esteem demand this.
Dr Raulston Nembhard is a priest, social commentator, and author of the books Finding Peace in the Midst of Life’s Storms; The Selfesteem Guide to a Better Life; and Beyond Petulance: Republican Politics and the Future of America. Send comments to the Jamaica Observer or stead6655@aol. com.