US embassy cable - 05KINGSTON420

UNCLAS SECTION 01 OF 03 KINGSTON 000420 
 
SIPDIS 
 
WHA/CAR (BENT) 
 
E.O. 12958: N/A 
TAGS: KJUS, PREL, ECON, JM 
SUBJECT: CARIBBEAN COURT OF JUSTICE (CCJ):  PATTERSON LOOKS 
FOR WAY FORWARD AFTER PRIVY COUNCIL SETBACK 
 
REF: KINGSTON 00393 
 
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Summary 
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1. (U) In what amounts to a political setback for Prime 
Minister PJ Patterson, on February 3 the UK Privy Council, 
Jamaica's final court of appeal, decided in favor of the 
Independent Jamaica Council for Human Rights (IJCHR), the 
opposition Jamaica Labor Party (JLP) and other appellants in 
their case against the GOJ over the establishment of the 
Caribbean Court of Justice (CCJ).  The Privy Council found 
that the process adopted by the GOJ to establish the CCJ as 
the nation's final appellate court was unconstitutional. 
During an address to Parliament on February 8, an 
unapologetic Patterson urged members of the Opposition to 
enter discussions immediately to chart a way forward for the 
CCJ as Jamaica has ratified an agreement with other CARICOM 
member states establishing the CCJ and must meet its 
obligations to the Caribbean Development Bank (CDB) to fund 
the court.  Members of the JLP publicly agreed to hold 
discussions but advised Poloff privately that they will do 
nothing to help the government in its quest to entrench the 
CCJ.  The inauguration of the CSME has been put on hold while 
Jamaica and other CARICOM member states examine the Privy 
Council's ruling.  End Summary. 
 
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Privy Council Rules Against GOJ & the CSME Setback 
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2. (U) In what constituted a political setback to Prime 
Minister PJ Patterson, the UK Privy Council (Jamaica's final 
court of appeal) on February 3 ruled in favor of the 
Independent Jamaica Council for Human Rights (IJCHR), the 
Jamaica Labor Party (JLP) and other appellants in their case 
against the GOJ over the establishment of the Caribbean Court 
of Justice (CCJ).  In its ruling, the Privy Council noted: 
"...it must be understood that the Board, (Note:  The Privy 
Council refers to itself as the "Board" in its ruling.  End 
Note.) sitting as the final court of appeal of Jamaica, has 
no interests of its own in the outcome of this appeal.  The 
Board exists in this capacity to serve the interests of the 
people of Jamaica.  If and when the people of Jamaica judge 
that it no longer does so, they are fully entitled to take 
appropriate steps to bring its role to an end.  The question 
is whether the steps taken in this case were, 
constitutionally, appropriate."  Further, the Council ruled 
that the process adopted by the GOJ to establish the CCJ as 
the nation's final appellate court was unconstitutional. 
Responding to the Privy Council's ruling in Parliament on 
February 8, the Prime Minister insisted that the government 
wants the CCJ to be entrenched in the Constitution and 
reminded Opposition members that the government tried to hold 
talks on the CCJ and other constitutional issues at an early 
stage.  The PM declined to comment on whether or not there 
should be a referendum but urged the Opposition to commence 
discussions with the government immediately to resolve this 
issue. 
 
3.  Jamaica, Barbados, and Trinidad and Tobago were scheduled 
to inaugurate the Caricom Single Market Economy (CSME) on 
February 19.  The inauguration has been put on hold pending 
Caricom member states' examination of the Privy Council's 
ruling.  Information Minister, Senator Burchell Whiteman 
explained that the decision was taken to push back the 
ceremony for sometime later this year and by doing so "more 
of the countries who are participating in the CSME will be 
ready to sign." 
 
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What is the CCJ? 
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4. (U) The Caribbean Court of Justice is the proposed 
regional judicial tribunal responsible for applying the 
revised Treaty of Chaguaramas (Note:  The revised Treaty of 
Chaguaramas provides the legal basis for the operation of the 
CSME.  End Note.)  The CCJ would function in two 
jurisdictions - an original jurisdiction and an appellate 
jurisdiction.  In its appellate jurisdiction the CCJ would 
apply the laws of the Member States from which it hears 
appeals.  In its original jurisdiction, it would perform the 
role of an international Court, applying rules of 
international law in interpreting and applying the revised 
Treaty of Chaguaramas. 
 
5. (U) Jamaica's constitution specifies that entrenched 
provisions can only be changed by a two-thirds majority of 
the members of both Houses of Parliament.  The Privy Council 
considered three acts of Parliament designed to abolish 
appeals to the UK-based Privy Council and to substitute 
appeals to the CCJ.  The Council's concern was that the Acts 
gave rise to the risk that governments could amend the CCJ 
Agreement, and thereby undermine "the protection given to the 
people of Jamaica by entrenched provisions of Chapter VII of 
the Constitution."  Although the Privy Council ruled that the 
procedures adopted by the government to pass the Acts were 
not "in accordance with the procedures required by the 
constitution, it also noted that "it had no difficulty in 
accepting, and did not doubt that the CCJ Agreement 
represents a serious or conscientious endeavor to create a 
new regional court of high quality and complete 
independence." 
 
6.  (U) Elaborating on the Privy Council's decision, Attorney 
General A. J. Nicholson explained that in reaching its 
decision on whether the three Acts of Parliament were 
constitutional, the Privy Council paid considerable attention 
to the structure of the higher courts in Jamaica, namely, the 
Supreme Court and the Court of Appeal.  The Privy Council 
emphasized that these higher courts are entrenched within the 
Constitution and that certain provisions designed to 
safeguard the independence of judges are protected by 
entrenchment.  If Parliament creates a court that can 
overrule decisions of the Supreme Court and the Court of 
Appeal, then that court must be similarly entrenched. 
 
7. (U) During the Parliamentary session, a JLP member 
questioned the cost for the CCJ and expressed concern that 
Jamaicans were being asked to pay for a court that was not 
entrenched while they could currently enjoy the full and free 
use of the Privy Council.  The PM responded that the GOJ is 
responsible for paying the CDB twenty-five percent of a 
US$100 million loan to fund the court even if it is not the 
country's final court of appeal. 
 
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Seaga Weighs In 
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8. (U) The CCJ's most vocal critic has been former JLP Leader 
and former Prime Minister Edward Seaga, who recently resigned 
from political life to take up a university professorship. 
From his new perch, Seaga welcomed the Privy Council ruling 
in a February 4 "I told you so" op/ed piece in the "Gleaner". 
 Wrote Seaga, "The (Privy Council) findings are both just and 
logical.  The Privy Council has ruled that the CCJ which the 
government enacted is unconstitutional and void.  This arises 
out of an anomaly in which the CCJ as the final court of 
appeal lacks protection since it could be enacted or 
abolished by a simple majority in Parliament, while the 
Appeal Court of Jamaica, a lesser court, is firmly protected 
by entrenchment in the Constitution requiring at least a 
two-thirds majority in Parliament for enactment for 
abolition." 
 
9.  Seaga proposed two options to resolve the issue:  1) 
abolish the Privy Council and designate Jamaica's Court of 
Appeal as the country's final court of appeal; or 2) GOJ 
consultation with the JLP "to agree to entrenchment of the 
CCJ as envisaged by the Privy Council ruling since the 
two-thirds majority cannot be obtained without Opposition 
support."  To this second option, Seaga reiterated his 
preference for an intermediate step:  entrenching the CCJ as 
an intermediate court only, making it superior to the Court 
of Appeals but not to the Privy Council.  He proposed that 
this arrangement be established for a period of ten years to 
allow citizens to develop confidence in the CCJ, after which 
the sitting GOJ would hold a referendum to entrench the CCJ 
as Jamaica's final court of appeal. 
 
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Let the People Decide - But Do They Care? 
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10. (SBU) JLP MP spokesman for Justice Issues, Delroy Chuck, 
told Poloff on February 11 that the CCJ will likely move 
forward with regard to its original intended jurisdiction - 
trade matters arising from the Caribbean Single Market and 
Economy (CSME).  Even though JLP members will meet with 
government officials, he added "the Opposition will do 
nothing to assist the government in its efforts to entrench 
the CCJ."  Chuck also noted the absence of members of the 
public during the Parliamentary session and the lack of 
citizen interest following the Prime Minister's speech.  He 
emphasized "people are hungry and if it does not have 
anything to do with putting food on their table, they are not 
interested."  Describing the CCJ ruling as an intellectual 
issue, Chuck emphasized that the public will have to be 
educated on this matter and that it must be put to a 
referendum. (Note: Corroborating this sentiment, Labor 
Minister Horace Dalley referred to the CCJ as an "upper and 
middle class" issue during a recent meeting with Poloff (Ref 
A).  Chuck confirmed that Opposition members will meet with 
GOJ officials and reiterated that they would continue to push 
for a referendum that they know the People's National Party 
(PNP) does not want. 
 
11. Ruling out any immediate compromise with the government, 
the JLP announced on February 14 that any agreement would 
have to wait until its leader, Bruce Golding, wins a seat in 
Parliament and is formally appointed leader of the 
Opposition.  With this announcement, the JLP is in a position 
to pressure the government to hold the necessary by-election 
to get Golding in the House of Representatives. 
 
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Patterson to Try Again on CCJ 
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12. (U) Defending himself further against his critics over 
the Privy Council ruling, Patterson used part of a nationally 
broadcast address on February 13 to explain the GOJ's 
position.  "Because the CCJ is of such importance to every 
single Jamaican in severing the links of dependency and 
fostering our economic development, I want this evening to 
take a little time to explain to you once again what is at 
stake here and how we can go forward."  He then noted that 
"...the CCJ as our final Court of Appeal was conceived by 
Jamaica and other CARICOM nations who share a history of 
slavery and colonialism, and whose legal systems are defined 
by the common law.  Those who framed our Constitution 
contemplated that after a few years of independence we would 
proceed to establish our own final court of appeal for cases 
tried in our Courts.  This is why the Privy Council was never 
entrenched in our Constitution."  Patterson went on to 
describe the establishment of the CCJ as necessary to 
effective Caribbean economic integration under CSME. 
 
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Comment 
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13. (U)  Following the Privy Council ruling, the GOJ finds 
its back against the wall, as it must now rely on the 
opposition JLP to obtain the necessary votes to entrench the 
CCJ in the Constitution.  Patterson, who has long been the 
CCJ's most prominent proponent in Jamaica, came under 
criticism for leading what some analysts describe as a poorly 
argued legal case for the CCJ.  The JLP relished the 
opportunity to trip up the GOJ in this manner, and the JLP 
will likely push for a referendum before it comes to a 
compromise on the issue of the CCJ as an appellate court. 
There are differing opinions as to the way forward for the 
CCJ; however, one area that has consensus is that the 
citizens of Jamaica must be educated on the CCJ as well as 
the CSME.  What is seen as a setback by some analysts is seen 
as an opportunity by others to ensure that both the CCJ as 
well as the CSME will be capable of moving forward without 
being mired in controversy.  Post will continue to monitor 
CCJ-related developments in Jamaica.  End Comment. 
TIGHE