Will Jamaica take Kenny’s advice?

Among Kenny Anthony’s most famous speeches is the one he gave at the Norman Manley Law School in Jamaica in 2002. The graduating class that year got an insight into what the then Prime Minister of Saint Lucia thought about the law profession in the region and about the state of the formation of the Caribbean Court of Justice.
The quote from the speech that resonated across the region came when Dr Anthony told the budding lawyers that the time when “the dream to become a lawyer was based on a deep sense of honor” had passed and had since been replaced by “greed and incompetence.”
Dr Anthony said that some lawyers had turned into “willing conduits of launderers and who utilize their client accounts to protect proceeds of drug trafficking, and who are themselves in receipt of such proceeds for personal benefit.”
The speech, contained in the collection of speeches in a book called The Rainbow’s Edge, caused quite the reaction from lawyers in Saint Lucia.
Five years out of office and re-elected just a few months ago Dr Anthony returned to Jamaica to speak about his favourite subject— the law. He had been invited to deliver the keynote address on the occasion of the opening of the 50/50 Law and Justice Conference at the UWI, Mona. With that country celebrating 50 years of Independence Dr Anthony, who referred to himself as “a simple lawyer,” sought in his speech to look at the development of law and justice in Jamaica.
He began: “Of one thing Jamaica can be sure: throughout its darkest days since Independence, its people have steadfastly retained the determination to maintain the rule of law.  From the social and student protests in the 60’s; the Cold War battleground and political tribalism in the 1970’s; turbulent economic times; unwelcome crime, the tragedy of natural disasters and even, more recently, the Dudus Extradition Affair, the Jamaican people and the Jamaican courts have proved their mettle in seeking to maintain the rule of law.”
Dr Anthony spoke of the country’s constant protection of its Constitution.
“In this 50th year of independence, one of the tests of Jamaica’s progress must be whether the Jamaican courts have indeed erected a viable structure of Jamaica’s own making; one that fits its sociological patterns,” said the St Lucia leader.  “We must ponder whether the approach to this construction has been too timid or too cautious?  Can Jamaicans say, in 2012, this 50th year, that they have shown the confidence in themselves which the founders expected?”
Dr Anthony called on Jamaican lawyers and judges “to move beyond the cold words of the written laws and bravely build on it for the present and for the future.”
“Jamaica—indeed, none of the countries in the Caribbean—can afford to sit on their laurels of its past achievements in law and justice.  We all must be willing to constantly nurture the growth and development of our indigenous law, for the law must keep pace with the needs, hopes and aspirations of the people.”
A large part of Dr Anthony’s speech was spent looking at decisions made by Jamaican judges over the past several years. He then turned to the issue of the Privy Council.
“I must confess that I am not an admirer of the Privy Council judgments in death penalty cases as I believe that the Privy Council decides such cases on ideological grounds rather than jurisprudential logic,” he said.
Although he commended some of the decisions of Jamaican courts, Dr Anthony asked: “Have the Jamaican courts been bold?”
He went further: “How can we expect a court to be bold when it is not the final court, but is bound by the decisions of a higher foreign court? How can it be expected to “erect a structure of our own” in these circumstances”? Is this not a compelling reason for abolishing appeals to the Privy Council? The answers are far from clear.  If the Jamaican courts were ever accused of not being sufficiently bold in the 50 years since Independence, the blame could not lie solely in the existence of the Privy Council as a higher court.
“There have been times in its history when the English Court of Appeal has been regarded as being revolutionary, bold and innovative, notwithstanding that the House of Lords was superior to it and capable of wrapping hard on the knuckles of its judges. Have the Jamaican courts been short of activist Jamaican Judges?”
The Saint Lucian leader had some more questions for the law fraternity that arise, he said, by the apparent intention to substitute the Privy Council with the CCJ.
“When the Privy Council is replaced by the CCJ as Jamaica’s final court of appeal, will this concern be automatically lessened? Will Jamaican courts be bolder when their higher court is a regional one?  The answers are also not clear or easy . . .
“Are we comfortable with a judiciary which does not merely follow the absolutist mode of interpretation but boldly follows a purposive or generous mode of interpretation? Do Jamaicans want a bold and innovative local court? Do Jamaicans like bold and courageous judges? The answers,” he continued,  “may reflect adversely on the Caribbean’s broader notions of self-confidence and national identity which are not legal in nature or origin, but cultural and sociological.”
In the final part of his speech Dr Anthony answered some of the questions on how judges can be bolder.
He cited a paper  written by Guyanese Professor of Law, R. W. James, before saying that “A purposive or generous approach to Constitutional interpretation requires the judge’s self-confidence in themselves and their role.  So does a willingness for judges (particularly those in the appellate court) to be bold and pioneering in their discernment of legal principles.  This, no doubt, will be influenced by how they are treated and regarded by other branches of Government.”
He called on judges to demonstrate self-confidence as well as other branches of Government.
Finally Dr Anthony said: “Jamaica needs a judiciary which is willing to be the guardians of the Constitution. Jamaica also needs a judiciary which is not afraid to foster and create Jamaican traditions and a Jamaican jurisprudence as a “deliberate act of intelligence”.
“The mastery of both elements will be the essence of their success. They must know it and the people must know it.”
It is important to note that the Caribbean Court of Justice (CCJ) agreement was signed in 2001 by Antigua & Barbuda; Barbados; Belize; Grenada; Guyana; Jamaica; St Kitts & Nevis; St Lucia; Suriname; and Trinidad & Tobago. Two further states, Dominica and St Vincent & The Grenadines, signed the agreement on 15 February 2003, bringing the total number of signatories to 12.              The Bahamas and Haiti, though full members of CARICOM, are not yet signatories, and because
of its status as a British colony, Montserrat must
await Instruments of Entrustment from the UK in order to ratify. TheAgreement Establishing the Caribbean Court of Justice came into force on 23 July 2003, and the CCJ was inaugurated on 16 April
2005.

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