Tue | Aug 22, 2017

The 'Visitor': an outdated, ancient anachronism of the oppressive colonial past

Published:Monday | January 4, 2016 | 1:00 AM
Bert Samuels
This photo was released by Buckingham Palace in September 2015 to mark the Queen becoming the longest reigning British monarch.
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Ms Suzette Curtello's recent attempt to have our courts deal with her complaint against the University of the West Indies was halted by the setting aside of an earlier ruling where she was granted permission to have the courts rule on her case.

There can be no denial that the court can refuse to hear a matter once that refusal is based on reasonable grounds. This case, however, in applying the principle that she must, first, exhaust all available remedies before she will be allowed to access a judicial review court, has sent her off to a place no citizen in 2016 should be forced to go. This is to the visitor. Who is the Visitor of the University of the West Indies? Believe it or not, it's the Queen of England, Her Majesty Elizabeth II.

Having read The Gleaner's report of Curtello's case, I had an immediate reality check on the role of this foreign queen in our affairs. The Jamaican Constitution makes reference to "the Queen" in a total of six places, and to "Her Majesty" in 34 of its clauses. This foreign monarch, whom the vast majority of us have never laid eyes on, heads the judiciary; all final appeals are to "Her Majesty" in Council, that is, the Privy Council (section 110). No judge of the Supreme Court or the Court of Appeal can be removed unless she refers his removal to her Privy Council (sections 100 and 106, respectively). I note, with deep suspicion and great interest, that there is no provision in our Constitution for the removal of a judge of her Privy Council. It is only our native judges' removal that is provided for in the Constitution.

She is head of the legislature, as our Parliament consists of "Her Majesty, a Senate, and a House of Representatives" (section 34) and no law shall be valid unless it recites the words of enactment as follows, "Be it enacted by the Queen's Most Excellent Majesty ..." (section 60).

And, finally, she is head of the executive arm of government: "The executive authority of Jamaica is vested in Her Majesty" (section 68 ).

As the warship, the Britannia, ruled the seas during World War II, so does this British monarch rule the three arms of our government. The highest law of the land, our Constitution, is littered with references to her overwhelming constitutional powers over our lives.

 

WHY NO CHANGE?

 

I asked myself, why should it be any different? Page one, line one of the Constitution gives the venue where it came into being. It reads, "At the Court at Buckingham Palace, the 23rd day of July 1962". Page one continues to record that the British Queen was present and acting on the advice of "Her Privy Council" when she ordered our Constitution into being. Notwithstanding this fact, I am still compelled to ask why, after more than 50 years of independence, we have been yoked with her rule over the principal seat of learning in Jamaica, the University of the West Indies?

Returning to Ms Curtello's pushback from the seat of justice, she is now forced to walk away from the closed doors of our courts to seek redress from "Her Majesty", the "Visitor", in search of due process to complete her PhD. The colonial Charter which governs our UWI predates the 1962 Constitution. It has its origins in 1948 as the College of the University of London. A Charter was issued in April 1962, four months prior to our "grant" of independence, to set up the college. There was, therefore, no Governor General contemplated in that body of rules. So, must Ms. Curtello's appeal be made to this monarch all the way in England? Or, must she await her next visit (sic) to oversee her government in Jamaica?

Having imported this alien concept of "The Visitor", we have been coerced into slavishly following English decisions on the matter, which have excluded the court's supervision of the affairs of the UWI. The Visitor's role was fully explained in the English case of Patel vs. University of Bradford Senate (1978)3 All ER 841. At page 851 of the said English judgment, it exposed, for the benefit of English men, the advantages of resort to the Visitor. It said that university disputes could be settled "informally, privately, cheaply and speedily. ..." Respectfully. these reasons do not apply here. In New Zealand, for example, the Visitor and the courts are no longer mutually exclusive, and the jurisdiction of the Visitor is now subordinate to that of the courts. In Jamaica, we have charted a new course (at least that's what we were led to believe) with the passage of the new Charter of Rights, which took effect in April 2011.

We cannot allow an institution so far removed from us in every respect and alienated from the reality of the Jamaican experience, to continue to supervise our lives. We need to remove this foreign Visitor from our Constitution and from our principal seat of learning, the University of the West Indies, and do so now!

- Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.