From left to right, Gomes, and Nicholson
Vernon Daley, Staff Reporter
THE GOVERNMENT has failed to advance convincing arguments to support its stance not hold a referendum to decide whether the country should participate in the Caribbean Court of Justice (CCJ).
Prime Minister, P. J. Patterson, and Attorney-General, A. J. Nicholson, who have been the Government's chief spokespersons on the court, have not provided adequate responses to professional and human rights groups, which have insisted that the people of Jamaica should be given the opportunity to decide whether they want to replace the UK-based Privy Council with the CCJ, as the country's final court of appeal.
The main argument of the Government's spokespersons is that the Privy Council is not entrenched in the Constitution and, therefore, a referendum is not required for abolishing appeals to that court.
In fact, they contend that this was deliberately done by the founding fathers (Norman Manley, Alexander Bustamante, et al) who envisaged the creation of Caribbean appeal court to replace the Privy Council.
SCOFFING AT THE ARGUMENTS
Over the last two years, there has been a convergence of legal opinion that the Government is on sound ground in arguing that Parliament has the power by simple majority to abolish appeals to the Privy Council, which are provided for under section 110 of the Constitution.
But even as the 1962 Constitution sets out a route for withdrawing from the Privy Council, it does not prohibit the Government from holding a referendum to gauge whether the people want this move.
It, therefore, seems deceptive of the Government to suggest that its hands are tied by the Constitution.
Dr. Carolyn Gomes, executive director of Jamaicans For Justice, has rightly scoffed at the Government's argument.
"I remain very concerned that 40 years ago our founding fathers didn't entrench appeals to the Privy Council and 40 years later we decide that they were the font of all wisdom and not give the people of Jamaica an opportunity to say whether or not they want this court via a referendum," she said in an interview last week.
Much has happened over the last four decades and, therefore, the thinking of the past cannot simply be imposed on the country.
QUALITY OF JUSTICE
One of the areas of concern for many Jamaicans, who have had the opportunity to experience both pre-Independence and Independent Jamaica, is the decline in the quality of justice under self-government.
Many who have come into contact with the justice system, have been stung, leaving them with the unfortunate view that Government and its agents have no interest in justice and do not exist to protect the rights of citizens.
It is in that context of mistrust that the Government is looking to abolish appeals to the Privy Council a court, which even its critics say, has served the country well.
Replacing the Privy Council with the CCJ requires legitimacy if it is to be accepted by the people and it behooves the Government to ensure that all are on board.
The Attorney-General and the Prime Minister perhaps have good reasons not to want a referendum, but they must make the case before they embark upon this great experiment.
To suggest that the founding fathers didn't want it that way and, therefore, we are bound by their wishes is essentially anti-democratic.
Is it that the Government does not trust the people to make a sensible decision on this issue? If that is what it thinks then it should say it. At least it would have good company in so doing.
ISSUES TOO COMPLEX?
The New Zealand Govern-ment, which is also contemplating a withdrawal from the Privy Council, said recently that the issues are too complex for the public to deal with through a referendum.
According to a newspaper report out of New Zealand on Friday, that country's Associate Justice Minister, Lianne Dalziel, told Members of Parliament (MPs) that Parliament had the knowledge and jurisdiction to deal with constitutional issues.
"I tremble at the thought how one might try to educate the electorate of the issues involved. Parliament has to take responsibility for change as it has always done with matters of court structure," Ms. Dalziel said.
Amid opposition cries "you don't trust the public", Ms. Dalziel said Parliament was the proper place to decide after consultation with the public, as in other countries. In Australia and Canada... abolishing appeals to the Privy Council in neither case were referenda conducted."
One suspects that the Government agrees with Ms. Dalziel. It is just not willing to take the chance in saying it.
Another reason why the Government is sidestepping the issue of a referendum appears to be the bogey of the 1961 Federation referendum.
They don't want to repeat the 'mistake' of the then Premier and president of the People's National Party (PNP), Norman Manley, who trusted the people to make a decision on whether Jamaica should stay in the West Indian Federation.
With the Opposition Jamaica Labour Party (JLP) vowing to oppose the, now defunct, Federation, Mr. Manley, in true statesmanship, felt at the time that it was right to allow the people to decide.
He is quoted in the Jamaica Hansard 1960-1961 as saying:
"Now that one party, the Jamaica Labour Party, has officially resolved to oppose Federation it is right that the issue of Federation should without the intervention of any other issue come before the people for a decision. It is right that those who believe in Federation should present a case against Federation to the people. It is right the people should be asked to decide this great issue."
Well, the issue of the CCJ is no less great than the issue of the Federation and the voices of opposition are even more in numbers. The question is whether Mr. Patterson is as great a statesman as Norman Manley was.
The Federation referendum, of course, became severely politicised and the people voted for the JLP's position and rejected Norman Manley's stance of remaining in the Federation. The rest is history, as they say.
REFERENDUM FEARS
It seems the current administration fears that the referendum could be used as a statement about its stewardship of the country and for that reason is doing its best not to walk down the Norman Manley road.
These are all good reasons why the Government doesn't want a referendum, but they are not good reasons why the people should not be given the opportunity to say whether they want to replace the Privy Council with the CCJ.
According to the Attorney-General, after Jamaica has joined the CCJ then the Government would hold a referendum to determine whether the court should be entrenched in the Constitution.
The cynic is bound to see this as a three-card trick. Here it is that the Government is refusing to give the people the opportunity to say whether they want the court but having foisted it up on them, it will then ask them whether they want it to be a firmly established provision of their Constitution.
If people are sensible enough to decide if they want the CCJ to be entrenched, surely they must be capable enough to decide whether they want the court in the first place.
BETTER ARGUMENT NEEDED
At any rate, we don't even need a referendum to determine the good sense of entrenching a final appeal court in the Constitution. It's a Constitution-al aberration that our court of appeal is entrenched yet the Privy Council is not.
Why would we want to run the risk of repeating this error with another final appeal court?
In fact, a major deficiency of the agreement establishing the CCJ is that there is no requirement for all member states to entrench the court in their Constitution.
This is dangerous and fuels fears that the CCJ lacks permanence and could go the way of many other regional institutions. Many of the issues surrounding the CCJ such as funding and the appointment of judges are concerns that can be thrashed out by both proponents and opponents.
Indeed, there has been substantial convergence of views on many of the issues already. The major concern still remaining is the call for a referendum.
The Government should not brush off this issue. It needs to deal with it frontally and provide better arguments to defend its stance.
