Sun | Aug 19, 2018

Editorial: Lost in the haze of Mr Seaga's logic

Published:Tuesday | December 23, 2014 | 12:00 AM

Edward Seaga, the former prime minister who opposes Jamaica joining the criminal and civil jurisdiction of the Caribbean Court of Justice (CCJ), has, more than once recently, accused the Simpson Miller administration of attempting to circumvent the appropriate constitutional route for establishing the CCJ as Jamaica's court of last resort in criminal and civil matters.

At best, however, Mr Seaga has been confusing in his analysis, which is short on clarity, especially when, on the face of it, the Government is following precisely the procedure which he argues to be the correct one.

Writing in this newspaper on Sunday, he said: "It is not intended, so far, by the Government that the CCJ should be established by way of deep entrenchment. ... The procedure for establishing the CCJ with deep entrenchment shall be two-thirds of the votes in each House of Parliament, and if the bill is rejected twice by the Senate, a referendum with a plurality of at least 60 per cent of the vote by the people. Section 49 (5) of the Constitution sets out this requirement. This is what the Constitution requires and the Privy Council (Jamaica's current final court) states is the acceptable route."

confusing assertion

Except for the part about what the Privy Council is purported to have said, Mr Seaga is right about the constitutional requirement. Where he becomes confusing is in his proceeding statement that the Government does not appear to be "pursuing this constitutional course" in that it is following "a procedure to have the CCJ established by a two-thirds majority vote in each House of Parliament", thus, apparently, weakening the tenure of the court and opening it to manipulation.

When Mr Seaga made the same point previously, we assumed a distortion of logic by an errant printer. But maybe it is a case of misapprehension of a nuanced argument, requiring expansion by Mr Seaga.

For the point is that the bill now before Parliament to have the CCJ replace the Privy Council would amend sections 94, 100, 103, 105, 106, 107, 108 and 110 of the Constitution, all of which are covered by the two-thirds majority rule, and the requirements of Section 49 (5), to which Mr Seaga alluded, if the bill should founder in the Senate. It is for this reason that the Government, which can muster the two-thirds majority in the Lower House, is required to court the Opposition, at least one of whose eight appointed members of the 21-seat Senate has to vote with the Government for the bill to pass.

lack of confidence

With regard to what the Privy Council ruled in 2004 when it struck down a previous process being used to establish the CCJ, despite inviting submissions from the parties, it did not rule on the question given that it had "not been the subject of consideration or decision by the lower courts".

We are also surprised at Mr Seaga's, among other things, seeming lack of faith in the substance and jurisprudential acumen of Caribbean people on a regional court and his embrace of the Privy Council "with an honoured tradition of justice that cannot be matched by the CCJ".

Perhaps people should throw their hands in the air and concede that the events of Frome '38 and 1962 and ideas of Jamaicanisation were big mistakes. And perhaps we should stay not only with the Privy Council, but recall the Colonial Office.