Wed | Aug 23, 2017

Editorial: CCJ: The wisdom of Lloyd Barnett

Published:Wednesday | October 21, 2015 | 10:00 AM

Lloyd Barnett is not one to give flippant advice. And certainly not on matters of judicial and constitutional principles, including the potential efficacy of the Caribbean Court of Justice (CCJ) to the Jamaican society.

In that regard, a few things are worth being reminded of about Dr Barnett, apart from his reputation for integrity and the fact that he is Jamaica's foremost constitutional scholar and a lawyer of great skill. It is he who, representing the Independent Jamaica Council for Human Rights, and others, including the then leader of the Jamaica Labour Party (JLP), Edward Seaga, successfully argued before the Privy Council that the legislative process being used in 2004 to remove that body as Jamaica's final court and replace it with the CCJ was unconstitutional.

It was Dr Barnett, too, who, on behalf of Senator Arthur Williams, challenged the bid by the present JLP leader, Andrew Holness, to use pre-signed letters to remove JLP-appointed senators from the Upper House and had the court affirm not only the unconstitutionality of such an action, but the right of senators to independence of conscience in legislative votes. Mr Holness, ostensibly, had gained the pre-signed letters as leverage against opposition senators voting in favour with the Government on laws to establish and entrench the CCJ, but in the end attempted to apply them as political penalty against Mr Williams and his colleague, Christopher Tufton.

Dr Barnett is a firm supporter of the CCJ. Indeed, he is the deputy chairman of the Regional Legal and Judicial Services Commission, the heavily insulated body that appoints justices, other than the president, to the court.

A decade after the initial attempt to have Jamaica accede to the criminal and civil jurisdiction - Jamaica is party to it in its original jurisdiction in interpreter of the treaty that established the Caribbean Community (CARICOM) - the Senate is debating the matter. At least one opposition member needs to vote with the Government to provide the required two-thirds majority for the bill to carry. Three weeks ago, in a response to Mr Williams' apprehension about supporting the CCJ at this time. Dr Barnett underlined the logic of the court for Jamaica.

 

SYMBOLS OF COLONIALISM

 

Mr Williams, for instance, argued that removing the monarch as the symbol of the Jamaican state should precede or be contemporaneous with the removal of the Privy Council. But Dr Barnett pointed out that both remain as important historic symbols of colonialism and questioned whether it would be better "to remove one immediately than retain both indefinitely".

But beyond symbols, he argued, is the fact that the Privy Council, based in England, "is virtually inaccessible to the majority of Jamaicans who have court cases because of geographical hurdles and financial barriers".

He asked: "Can anyone responsibly support and vote to retain the maintenance of the current system when the average Jamaican is unable to gain access to the highest court in the system? Can a conscientious Jamaican in 2015 vote against the 'reparation' of our self-esteem, sense of independence and detachment form imperial institutionalism?"

We hope no.

For those who call for a referendum, we recall that the Parliament overhauled the Constitution and instituted the Charter of Fundamental Rights and Freedoms without one.