Thu | Mar 22, 2018

Total but not absolute power

Published:Sunday | May 31, 2015 | 12:00 AM
Frank Phipps

I have read the Reverend Garnett Roper's article ('CCJ resistance proves JLP just can't think', Sunday Gleaner, May 24, 2015) more than once trying to find the arguments he presents for support of the Caribbean Court of Justice (CCJ) to replace the Privy Council for final appeals from Jamaica. Instead, I found the three sins of the Jamaica Labour Party (JLP) that led Reverend Roper to his conclusion that the JLP was "overcome by intellectual rigor mortis".

While it may be rewarding for debate to check the scorecard for the sins of both political parties to make a decision, I would rather make my judgement after guidance from John 8:7 of the Gospels and then move on.

Both daily newspapers seem to be taking opposite positions on the question of the CCJ to replace the Privy Council, as they may well do for the benefit of their readers on a subject of great public concern. Roper, as president of the Jamaica Theological Seminary and chairman of the Jamaica Urban Transit Company, is entitled to his opinion on a matter of high constitutional importance - for which he could do no better than attack the messenger, ignoring the message.

If the venerable gentleman honestly believes that the JLP's opposition to his views on the CCJ is the result of an inability to think, there will still remain the real issue in contention where both sides of the argument must be considered. Genuine and respectful conversation in a free press is welcome for democracy.


both sides of the argument


Ambassador Stephen Vasciannie, a distinguished professor of law-turned-diplomat, wrote an article for the West Indies Law Journal May and October 1998 as senior lecturer at the law faculty of the University of the West Indies, where he considered both sides of the argument. After extensively reviewing the pros and cons for the CCJ, the learned teacher wrote as his concluding remarks, Arguments for a Referendum:

"As much as the present discussion has been meant to demonstrate there are substantial and important arguments, both for and against abolishing appeals to the Privy Council at this time. And, simultaneously, abolishing the right of appeal to the Privy Council involves the removal of an important right held by all Jamaicans. Bearing these considerations in mind, and noting the strength of feelings on both sides of the issue, this is not a question which should be addressed without extensive consultation with the Jamaican people. In my view, this consultation should not be conducted simply on a pro forma basis. Rather, there is a powerful case that the matter should be put to the people of Jamaica in the form of a referendum."

"Finally, it is also open to political argument that if Privy Council appeals are abolished without a referendum, this approach reflects an anti-democratic tendency in government."

That is the message Reverend Roper should address to help your readers to decide which opinion to accept for a decision on the very important question; and fault it if he can, rather than going at the messenger to accuse the JLP of a practice over the last five decades that is consistently inimical to the interest of Jamaica's national development.

Contrary to that accusation, the records show that the only times of significant national development in Jamaica were with a JLP Government. It would be reckless to leave the people of Jamaica with the impression that a majority representation in Parliament confers absolute power to decide what is best for their governance in matters of disagreement and anyone who speaks otherwise is demented and hostile to Jamaica's development. Such treatment for a differing opinion serves to alienate support, especially support from those who are seeking guidance for making a decision on an important matter of governance.


change to a constitutional provision


The very weekend the challenged article was published, I had the privilege to attend a conference put on by the General Legal Council in celebration of the 10th anniversary of the CCJ. The findings presented at the conference from a comprehensive and favourable review of the performance of the court during its comparatively short life show that its competence cannot be disputed.

But here is the rub: For the CCJ to be included in the Constitution of Jamaica, it will require a change to a constitutional provision. The legislative power granted by the Constitution to Parliament to make laws for the peace, order and good government of Jamaica is total, but not absolute because certain constitutional provisions are protected against change.

Legislative power is entrusted by the people to their representatives in Parliament to do only what is authorised, and only by the manner set out in the Constitution. It is a temporary concession of power that must be renewed every five years by the people, while sovereignty remains with the people.

The Constitution puts a restraint on the legislature by requiring a two-thirds majority vote in both Houses of Parliament for changes to protected provisions identified in the Constitution; the composition of the judicature at Chapter VII is one such provision. A two-thirds majority vote in both Houses of Parliament is required for a change to Chapter VII that would allow the appellate jurisdiction of the Caribbean Court of Justice to be included there as part of the hierarchy of courts.

Ultimately, a failure to get the two-thirds majority vote, where required, results in having the question referred to the people for a decision. This is democracy, where the people are sovereign and Parliament can pass laws only within the terms and conditions of the Constitution. This is what we must accept without demurrer or equivocation.

n Frank Phipps, QC, is an attorney-at-law. Email feedback to columns