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HOUSE OF REPRESENTATIVES PASSES CCJ BILL
KINGSTON, April 13 (JIS):
After lengthy deliberation the House of Representatives yesterday (Tuesday, April 12) passed the Caribbean Court of Justice (Original Jurisdiction) Act 2005 just days before the official inauguration of the Caribbean Court of Justice which is set for Saturday, April 16.

The Bill, piloted by Minister of Foreign Affairs and Foreign Trade, K.D Knight, was passed with seven amendments. Minister Knight explained that the Bill was intended to act as “holding legislation” establishing the CCJ, as a court of original jurisdiction only. He said entrenchment of the court in its appellate jurisdiction would follow and pointed out that the CCJ would play a critical role in the Caribbean Single Market and Economy (CSME).

Minister Knight said in discharge of Jamaica’s obligations under the agreement, the intention was to establish the CCJ as a court of original jurisdiction with exclusive power in relation to the interpretation and application of the Revised Treaty of Chaguaramas and to do so by the procedure appropriate for the enactment of ordinary legislation.

The CCJ as a court of original jurisdiction will have compulsory exclusive jurisdiction in relation to matters concerning the interpretation and application of the Treaty. The court will discharge the functions of an international tribunal, applying the rules of international law with respect to the interpretation and application of the Treaty.

He explained that the rationale behind the move to establish the court in its original jurisdiction only was in light of the recent Privy Council ruling, which held that the three Bills establishing the CCJ were unconstitutional.

Mr. Knight said despite the ruling, Jamaica remained bound by its obligations under the agreement to establish the CCJ. He said the April 16 date did not allow sufficient time to enact new legislation to establish the CCJ using the procedure required for the enactment of legislation to amend entrenched provisions of the Constitution. He noted that this procedure required at a minimum, lapses of two periods of three months each between the introduction and the passage of the Bills.

The Foreign Affairs and Foreign Trade Minister said the intention in due course was to replace the legislation with a provision that would fully accord with the agreement and would be enacted in accordance with the procedure required for the enactment of legislation to alter entrenched provisions of the Constitution.

In the meantime he assured that the amendments to the Bill were intended to ensure that it contained nothing that was inconsistent with the Constitution of Jamaica or its legal system.

In response to complaints from the Opposition that the court would be underutilized and was unnecessary, the Foreign Trade Minister pointed out that there were several disputes that could go to the CCJ and that there would in fact be sufficient work for the court to do. Furthermore he noted, all courts when first established took time before the caseload increased.

The Judicial committee of the Privy Council in its recent decision declared the Caribbean Court of Justice Act 2004 along with the Caribbean Court of Justice (Constitutional Amendment) Act 2004 and the Judicature (Appellate Jurisdiction) Act 2004 unconstitutional and void.

The Acts included legislation to establish the CCJ as a Court of Original Jurisdiction and Appellate Jurisdiction and abolish appeals to the Privy Council substituting such appeals, with petitions to the CCJ in implementation of treaty obligations under the agreement establishing the CCJ.

The Privy Council in giving its decision said the difficulty was not whether the Parliament had the power to achieve the intended objectives by the three Acts, but whether the procedural means of achieving it followed the procedures required by the Constitution.

The Privy Council’s decision was that the legislation to establish the CCJ as a court of appellate jurisdiction, a court to which power to review decisions of the superior courts of Jamaica was being entrusted, altered the entrenched provisions of Chapter seven of the Constitution.

This chapter the Privy Council said, governed the judicature and therefore had to be enacted by the procedure appropriate for the enactment of legislation to amend an entrenched provision of the Constitution. The three Acts considered had not been enacted by such procedure and it was on this basis that the Privy Council made its ruling.

In the meantime in his remarks Opposition spokesman on Justice, Delroy Chuck said the Opposition had no objections to the Bill or the CCJ but maintained that the financial obligation of Jamaica in the sum of US$27 million for the maintenance of the court was too high, given the fact that it was unlikely that there would be need to use the court as the disputes could be settled by other means identified by the Treaty without going to the court.

His argument was based on Chapter Nine of the Revised Treaty, which sets out ways in which disputes can be resolved before the finality of the court such as good offices, mediation, consultation, conciliation and arbitration.

Furthermore Mr. Chuck said the Opposition’s lobby was for an entrenchment of the court in the Constitution that could not be removed by a simple majority by any government.

In responding to the concerns raised, Prime Minister P.J Patterson said while the idea that the CCJ in its original jurisdiction only was not the initial intent and there were other provisions within CARICOM to resolve disputes, “the Court in its original jurisdiction would be the final tier.”
Prime Minister Patterson noted, “no tribunal could replace the power and competence of the CCJ in terms of its original jurisdiction as nothing short of a judicial body could give rulings that are final and definitive”.

On the matter of the remuneration for the judges being higher than that of United States Supreme Court judges, Mr. Patterson pointed out that while there was no retirement age for judges of the U.S. Supreme Court who could serve until the time of their death, there was a fixed period of seven years tenure for CCJ judges at the end of which contracts were non-renewable.

Prime Minister Patterson on the matter of the financing of the court, pointed out that the funding arrangements had already been brought before the House for approval in the form of a Government Guarantee to obtain a loan from the Caribbean Development Bank, to secure the necessary financial backing.

Mr. Patterson further noted that CARICOM while not the final “trading and economic horizon” was a necessary step in enabling the combination of resources crucial to operating in an increasingly globalized world paving the way for future such advances. He noted that it was important that the region successfully collaborated, as it would prove the test of endurance in an arrangement such as the Free Trade Area of the Americas (FTAA).

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