THE Bermuda Independence Commission proposed that it would investigate whether the UK's Privy Council should remain Bermuda's final court of appeal, but the proposed Caribbean Court of Justice (CCJ), the only recognised alternative, has already been dealt a stunning blow.

The Privy Council has held that Jamaica's recent legislative effort to establish the CCJ was "unconstitutional and void".

In its first monthly report to Cabinet, the BIC advised that "the matter of whether Bermuda's highest court of appeal would remain the Privy Council needs to be resolved. This point is of particular importance to those businesses that are domiciled in Bermuda and have confidence in the right of appeal to the Privy Council in Britain."

Premier Alex Scott told The Royal Gazette during last year's Risk and Insurance Management Systems (RIMS) conference in San Diego that "if Independence happens, one key component in my mind is that we would retain the British system of jurisprudence".

He said this was one of the reasons Bermuda was attractive to international business and seen as key to Bermuda's political stability.

Shadow Attorney General and Shadow Minister of Legislative Affairs Trevor Moniz said yesterday that the CCJ appeared to be in disarray, and that the Privy Council had served Bermuda well.

"The case was won in the Privy Council by Dr. Lloyd Barnett, a Jamaican who is a recognised authority in the Caribbean on constitutional law in the Commonwealth," said Mr. Moniz. "He was representing a civil rights group, and they may have been concerned that the CCJ will reintroduce capital punishment, which the Jamaican Government wants.

"Given the PLP Government's desire to have closer connections with the Caribbean, and its wish to sever ties with the UK, the CCJ would be the logical alternative to examine, but obviously not for the foreseeable future.

"It will be a long process, even in Jamaica, if they can't get the two-thirds majority they need. The CCV has serious problems, and it's another example of 'if it ain't broke, don't fix it.' There are a lot of things broken around here, but the right of appeal to the Privy Council isn't one of them. It works fine, and it's very cheap; it doesn't cost us a penny."

The Privy Council concluded that the Jamaican Parliament had erred in passing the enabling legislation by a simple majority rather than the vote of two-thirds of the members.

The result is that the CCJ has been exposed to partisan political in-fighting and regional dispute. Former Prime Minister and retired Jamaica Labour Party (JLP) leader Edward Seaga said that the CCJ might have to be "severely down-scaled or replaced by a new and lesser entity".

Given that the JLP holds 26 of 60 seats, the ruling People's National Party (PNP) of Prime Minister P.J. Patterson would need six JLP votes to reach the two-thirds threshold.

The Caribbean Community's Secretariat in Georgetown, Guyana said that it learned, on February 3rd, of "the ruling by the Judicial Committee of the Privy Council that the legislation, passed by the Jamaican Parliament to establish the Caribbean Court of Justice (CCJ) in that country, is unconstitutional and void."

The Secretariat said that Jamaica's failure to do so "represents a significant setback for the establishment of the CCJ as the ultimate appellate tribunal in and for Jamaica", and that the Jamaican government was considering how best to respond.

However, the CCJ, which was intended to replace the UK Privy Council in the Caricom community was dealt another apparent setback on the day before the Privy Council ruling.

On February 2, Trinidad and Tobago's House of Representatives voted unanimously to implement the CCJ, but only as it related to the functioning of the Caribbean Single Market and Economy (CSME); the Privy Council in London will still be its final appeals court on all other matters.

The proposed CCJ is not universally popular in the Caribbean, and in the Jamaica Gleaner, columnist Dawn Ritchattacked the concept of the CCJ, and Jamaica's US$25 million share of the budgeted US$100 million cost.

"I am dead set against the CCJ," she wrote on February 20. "Less than one per cent of all civil and criminal matters before the courts in Jamaica go to the Privy Council, the court of final appeal it is meant to replace. Why borrow money overseas, go to tremendous Jamaican taxpayer expense and constitutional change for a statistical inconsequence?"

Ms Ritch, in words similar to those used by local opponents of Independence, continued: "Resources are being diverted from desperate national needs into a vainglorious, symbol-grabbing irrelevance certain to do more harm than good. And I don't care if it's colonialism's fault according to anybody's lights."

On that same day, Mr. Seaga wrote in the Gleaner that delay in the launching of the CSME and the diminished workload of the CCJ meant that the projected expense and limited jurisdiction of the court should fundamentally alter Caricom plans.

"The principal casualty of the Privy Council ruling on the CCJ has been the CSME itself," he wrote. "The CCJ was structured to have an original jurisdiction to deal with trade matters and the interpretation of the (Caricom) treaty. It was also designed to serve as the final court of appeal for Jamaica and other regional countries. It is the latter function that has been the subject of the Privy Council prohibition ruling."

Mr. Seaga believed that jurisdiction over only treaty and trade matters would be inappropriate for an expensive court staffed with high-calibre judges.

"Six judges have already been appointed to the CCJ," he advised. "They are highly paid. This presents a scenario of highly paid judges dealing with matters that do not require their high level of skills.

"The original high level of costs would have to be scaled down to avoid public criticism. Bear in mind that (a total of) US$100 million is required to set up a fund to finance the court in its original design.

"With Trinidad and Tobago facing its own constitutional hurdles, (and) deciding to support the CCJ only in its original (trade and treaty) jurisdiction, Dominica and Belize doing likewise, Antigua and Barbuda having strong reservations, the Bahamas not participating, and Jamaica having no access to the CCJ in its appellate function based on the Privy Council ruling, very few countries will be left to foot the top-heavy bill of the elaborately-structured CCJ.

"This could cause the CCJ in its original design to be severely down-scaled or replaced by a new and lesser entity. The CSME would as a consequence have to operate with a dispute mechanism of a lesser order."

Jamaican Senator and PNP Attorney General A.J. Nicholson also weighed in with his views in the same issue of the Gleaner. He suggested that to reach the constitutional "entrenchment" sought by the Privy Council would mean the "indispensable requirement of collaboration and co-operation between the Government and the parliamentary Opposition. Nothing else will suffice.