2005-02-15 21:02:00
Embassy Kingston
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E.O. 12958: N/A






E.O. 12958: N/A



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:
" 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

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."

What is the CCJ?

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

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.

Seaga Weighs In

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

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.

Let the People Decide - But Do They Care?

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.

Patterson to Try Again on CCJ

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.


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.