Wed | May 22, 2019

A.J. Nicholson | NIDS: Respect for our laws

Published:Sunday | April 21, 2019 | 12:15 AM
Edward Seaga

The Gleaner editorial of Thursday, April 11, noted “... the (Privy Council’s) interpretation of the word ‘whereas’ at the start of Clause 13 of Jamaica’s Constitution that deals with fundamental rights and freedoms of citizens in which it seemingly embraced the Caribbean Court of Justice’s (CCJ) contextual meaning of the term, thereby overturning its own previous position on the matter”.

It continued: “... the development underlines the growing respect for the jurisprudence of the CCJ and highlights the contorted logic of those in the Caribbean, including Jamaica, who still conspire against accession to the CCJ as our court of last resort”.

On the very next day, Friday April 12, the People’s National Party (PNP) General Secretary, Julian Robinson, the upfront litigant in the recent National Identification and Data Systems (NIDS) matter before the Supreme Court, in the wake of the judgment handed down earlier that day, intoned: “(The) decision is a vindication of the value of the Jamaica Constitution and its Charter of Fundamental Rights and Freedoms and the right that it gives to every Jamaican to ensure that the laws that Parliament enacts are consistent with the Charter”.

What is remarkable is that both the editorial comment and the observation of the PNP general secretary, coming as they do, no more than a single day apart, are historically intertwined, and, no doubt, point to the inevitable coming of an early new dawn.

The approach to the NIDS legislation initiative reminds us that in recent times, certainly since 2007 when Bruce Golding assumed the prime ministership, and indeed before, as we shall see, the uninspiring show of regard for our laws and our Constitution coming from the Jamaica Labour Party (JLP) has left far too much to be desired.

We need only remind ourselves of their approach, under Golding’s leadership, to the Public Service Commission/Solicitor General entanglement, and the Mannatt/Dudus outrage; and under Andrew Holness’ leadership, after he had come under Golding’s tutelage, the unlawful extraction of undated pre-signed resignation letters from would-be appointees to the Upper House, to guard against any JLP senator voting in favour of the CCJ constitutional amendment and now, the fast-moving, amendment-filled NIDS legislation initiative.

Together, these episodes do not constitute a proud period in Jamaica’s governance processes, and apart from the Senate membership matter that had, of course, remained hidden, impactful sectors of the society, including the PNP, warned against the approach being adopted on every occasion to no avail. And the real danger is that each of those outrageous decisions has been based on political manoeuvering, and, certainly, by no means, on good-governance reasoning.

GROUNDBREAKING CONSTITUTIONAL AMENDMENT

The suggestion for the amendment of Chapter III of our Constitution that would come to be entrenched as The Charter of Fundamental Rights and Freedoms came from then Leader of the Opposition, Honourable Edward Seaga, in the early 1990s, as a member of the Joint Select Committee on Constitutional and Electoral Reform, under the chairmanship of the Honourable David Coore of blessed memory.

Legislation for that groundbreaking constitutional amendment was drafted during the time of the Patterson administrations, and the provisions were largely developed and settled in Joint Select Committees of Parliament during those years.

Edward Seaga, rightfully so, has never allowed it to be forgotten, before and after the amendment was passed by the Parliament in 2011 during the then JLP administration, that the seed had been planted by him. Now, the PNP and its general secretary have found it necessary to move the court in the NIDS case to remind the JLP that that amendment was intended to ensure that all laws that the Parliament enacts are consistent with the provisions of the Charter, hence of the Constitution.

Included in David Coore’s Joint Select Committee’s 1995 Report, alongside Seaga’s and several other suggestions, thereafter approved by Parliament, was a recommendation, on the introduction of the PNP, that “appeals to the UK Judicial Committee of the Privy Council should continue ...subject to the introduction of a Caribbean Court of Appeal”.

Both policy initiatives were pursued in earnest, side by side, during the Patterson years. We have spoken to the development of the provisions of the Charter. Upon the suggestion of Jamaica at a meeting of CARICOM Heads of Government, in the mid-1990s, a Preparatory Committee for the establishment of a final court of appeal in the Commonwealth Caribbean was formed.

Its membership was to consist of the attorneys general of Guyana, Trinidad and Tobago, Barbados, St Lucia, St Kitts and Nevis, and Jamaica, with Barbados as its chairman and Jamaica, its deputy chairman.

It is not to be believed that this was the first occasion on which the idea of the establishment of such a court had come before a meeting of the CARICOM Heads of Government. It was one of the recommendations coming out of one such meeting right here in Kingston, close on half a century ago in 1970, under the chairmanship of then Prime Minister Hugh Shearer, the issue having been placed as an agenda item at the insistence of the then JLP government.

CONSIDERATIONS

By 2001, the work of the Preparatory Committee was complete, its members having been guided by the following considerations:

1. The over-riding long required imperative to de-link from the court at Westminster after almost 200 years, with a view to moving towards completing the circle of independence by that severance from the erstwhile colonial master.

2. The establishment of a prestigious final court was acknowledged to be an expensive undertaking, affordable at this time only as a regional initiative, as exists elsewhere.

3. The court would be manned by judges who are attuned to our culture and way of life.

It was envisaged that it would be preferable that the provisions of Jamaica’s new Charter would come to be adjudicated upon, and interpreted by, judges of the CCJ, so that if there was to be an appeal of the NIDS matter, for example, it would surely be appropriate and meaningful that a final declaration on such privacy and other issues be made by judges from our own region rather than by judges of the distant Privy Council.

4. Fourth, that the court would be itinerant in nature, coming to sit at our doorstep here in Jamaica as needed and, as such, ensuring access to our final court for all Jamaicans, unlike what obtains at present. Importantly, it has come to be embraced, worldwide, that the independence of the CCJ, in particular its insulation from political interference, is beyond question.

From the beginning of the extended exercise in the development of those policy initiatives, Seaga, as leader of the JLP, set his face publicly against any proposed move away from the Privy Council on two scores. It was his stated view that the establishment of the court here in the Caribbean was a precursor to some imagined political integration movement. And second, he also publicly asserted that “pure justice comes from the Privy Council”.

So steadfast has the JLP been prepared to hold to that position that they have chosen over the years to defy, and thumb their noses at, the ruling of the Privy Council in a matter in which one of the litigants was Edward Seaga himself, that the legislative process to move away from that court and to accede to the CCJ was a two-thirds majority vote in each House of Parliament, requiring the same process and level of support from the Opposition, as in the case of enactment of the Charter.

They have taken a partisan political decision to insist on the requirement of a referendum vote to be undertaken in the case of change of the final court. So this business of the JLP showing deep disrespect for our laws, based upon political gamesmanship, had long preceded the leadership of Bruce Golding.

THE ACID TEST

Those in the PNP who were closely involved with the development journey of both policy initiatives were convinced that the one and only avenue open for Jamaicans to come, in any short time, to enjoy full access to their final court was to insist that an agreement be struck with the JLP that the legislation in respect of both constitutional amendments be placed before the Parliament at the same time and that the passage of the one be dependent on the passage of the other.

With the adherence of both political parties to such an agreement, the people of Jamaica would be able to enjoy the expansion of the fundamental rights and freedoms to which they are entitled and would also have the kind of access to their final court of appeal that for them, could otherwise only remain a dream.

The acid test would have been to witness the reaction of the JLP and Mr Seaga – with his strong forward-looking desire for his brainchild Charter to come into existence – to that proposed agreement, designed for the people of Jamaica to enjoy both worlds.

There was a discussion within the hierarchy of the PNP Opposition on whether such an agreement should be sought to be extracted from the JLP when the proposed Constitution amendment for the enactment of the Charter was about to be debated in the House of Representatives.

Some argued against it on the grounds, as they saw it, that it might appear that it was being sought to delay the citizens’ right to the enjoyment of new and improved freedoms, and that as the PNP Opposition was forthrightly prepared to lend its support to the passage of the Charter, when the time came, they argued, the JLP would surely give its support to the passage of the CCJ legislation.

Consensus could not be arrived at, and the idea of seeking after such an agreement had to be abandoned, and the Charter amendment was passed with the support of the PNP Opposition.

The PNP general secretary, Julian Robinson, would now surely recall those discussions within the party and would have come to witness the outcome that was projected in the thinking of those who, propelled by experience, had argued for that agreement to be extracted from the JLP.

And he would perhaps now be buoyed by the revelation in the Gleaner editorial of the British judges in the Privy Council expressing the kind of confidence in the CCJ, which spurs them to be prepared to overturn their own previously held position, guided by the quality of jurisprudence emanating from that court.

And he would thereby also envision the early dawning of a new day, with the prospect of new thinking in the JLP since, for centuries, has it not been the British dispensers of “pure justice”, who have taught the people who they brought to these shores, and the descendants of those people, how and what to think?

- A.J. Nicholson is an attorney-at-law and former Cabinet Minister. Email feedback to columns@gleanerjm.com