Martin Henry | Referendum, anyone?
So when are we going to have our referendum on the Caribbean Court of Justice (CCJ)? The JLP, in Opposition, was adamant that a referendum must be held for the people to decide on the CCJ as the country's highest and final court of appeal.
The party is now in Government. And Prime Minister Andrew Holness is at this very moment heading to the 37th CARICOM Heads of Government Meeting, which opens tomorrow in Georgetown, Guyana. What will he be saying about Jamaica and the CCJ? Before he left, he launched his CARICOM Review Commission with a former prime minister and CARICOM-sceptic as chairman. Not to "chart any path out of CARICOM". But then "we cannot pre-empt what the commission will say".
Referendums, the highest form of democratic decision making when the entire electorate has the opportunity to participating in deciding a public issue, are breaking out everywhere.
The British people have just gone through their Brexit referendum. The question was, "Should the United Kingdom remain a member of the European Union or leave the European Union?"
And British voters voted to leave by 52 per cent to 48 per cent. And everybody is prognosticating what the effects will be for the UK, for the EU, for the world. Some with greater prophetic certainty than others. One effect which is hardly prophecy is the domino effect of exiters in the remaining 27 members of the EU demanding a referendum of their own.
There is bound to be several exit referendums among EU member states in the next two to 10 years. And some of them will deliver a yes for leaving.
Just 21 months before Brexit, Scotland had gone to the polls to decide on whether Scotland should remain part of Britain. Voters decided for 'Remain', 55.3: 44.7. But this was in the context of Britain being in the EU. The people of Scotland and those of Northern Ireland voted strongly for 'Remain' in the Brexit referendum on June 23. There has been fresh clamour for a referendum on unity within the United Kingdom.
Among the political oligarchy (an anachronism in democracy) and the articulate minority, there is a great deal of fear that referendums are likely to deliver the 'wrong' results. There are very strong sentiments in Britain now that Prime Minister David Cameron should not have called it, and that it was the less rational, less educated, country English Britons who delivered the 'wrong' result for the wrong reasons.
One politician is even calling upon the "sovereign" Parliament to overturn the Leave vote. And he's not without a point. The British Parliament is sovereign, not the people, as in American constitutionalism.
Balancing representational democracy (electing leaders to decide) and plebiscitary democracy (the direct vote of all the members of an electorate to decide on a public question) in one democracy is not going to be an easy task, not with the massive loss of consensus in society, the sharp fragmentation of polities into opposing factions, and the rising prospect of manipulation. The Swiss model of regularly asking the citizens of the country to decide public issues with fresh votes is not exactly easy to replicate and to maintain. Democracy, as generally understood and revered, is up for challenging times.
Were we to put that other thorny public issue of capital punishment to referendum, the answer, from the prevailing public mood, is pretty obvious. Jamaicans overwhelmingly want to see convicted murders hanged high.
And what about same-sex unions? Most countries which have gone ahead did not put it to a referendum but, instead, used their legislatures to call it. Bermuda, a British dependency, has put the question to referendum, as it has previously done for independence from Britain. On the same day as the Brexit vote in the 'Mother Country', Bermudans voted strongly against same-sex marriage (69 per cent) and same-sex civil unions (63 per cent). The voter turnout was below 50 per cent.
A turnout of 50 per cent or more is required to make the vote 'valid'. Brexit commanded a 71 per cent turnout, quite high by British standards, with a rush of last-minute voter registration.
Although the Bermuda vote is non-binding, Premier Michael Dunkley said on the eve of the poll, "Any outcome is the will of the people and will guide their elected officials
accordingly." We sort of know what results would be like in Jamaica in 2016 and for the foreseeable future!
In 1995 Bermuda held a referendum on independence. On a voter turnout of 58.8%, 73.6% voted against independence. Premier Sir John Swan, in favour of independence and now a living national hero, resigned. David Cameron, leader of the Remain side in the Brexit referendum, has announced his own resignation, sine die.
The Parliament of Grenada last week, with all 13 seats controlled by the ruling New National Party (NNP) of Prime Minister Dr Keith Mitchell, passed legislation to replace the UK Privy Council with the CCJ as the country's final appellate court. The matter will now go to referendum by December. Antigua and Barbuda is to vote in its own CCJ referendum soon.
Jamaica has little option of remaining with the Privy Council. Only about a dozen countries in the 54-member Commonwealth now make final appeals to the Privy Council. Should we go to a referendum, the options could not sensibly be so much between Privy Council and CCJ, but between CCJ and a National Final Court of Appeal.
A vote for a Jamaican Court of Appeal would be a dagger through the heart of CARICOM. Already, defenders of the troubled Community are lining up to beg and beseech that there be no membership referendums to upset unity which, they say, is needed more than ever in the face of the perceived catastrophe of Brexit. But it's only a matter of time before disaffection in some member state forces a call. Britain had an EU membership referendum in 1975 in which two-thirds of the voters opted for staying in. Then the numbers kept falling.
"Jamaica is Trinidad & Tobago's ATM," wails William Mahfood, president of the Private Sector Organisation of Jamaica and head of a company which has gone from manufacturing to mostly importation and distribution. A similar Brexit complaint against Germany was dominant in the Leave campaign.
Ironically, the CARICOM HOGs summit convenes tomorrow on the anniversary of Norman Manley's birth, July 4! Manley was the caller, as premier, of our one and only referendum, September 19, 1961. The question was about Jamaica's continued membership in the West Indies Federation. Manley, as head of the PNP and of the Government, led the Stay campaign. Alexander Bustamante, as head of the JLP and leader of the Opposition, led the Leave campaign. Leave won, ending the West Indies Federation.