D.K. Duncan MEMBERS OF Parliament have been asked "to give the country a formal undertaking, in Parliament, to the effect that: Appeals to the Privy Council would continue, and the Caribbean Court of Justice would not be deemed to be a functional court unless the CCJ is firmly entrenched in our Constitution".
A positive response to this request requires three fundamental commitments. Firstly, any final Court of Appeal in our Judicial System should be firmly entrenched in the Constitution. Secondly, before removing the present constitutional right of final appeal to the Privy Council, the people should be given the opportunity to decide through a referendum. Thirdly, the Privy Council should continue to be the final Court of Appeal unless the people decide to entrench a Caribbean Court.
The call for a formal undertaking which was outlined recently in full-page newspaper advertisements and argued in the electronic media, can still be granted.
PARLIAMENT
The Government Senators, which include the Attorney-General, have by their votes at the end of their recent debate, ignored this call by five significant organisations in Civil Society. Originally conceived as a review body and a forum for the exercise of the national conscience the Senate continues to display manifestations of our dysfunctional political system.
It is now left to the House of Representatives to give this formal undertaking. In theory, this means that five Government MPs voting along with the 26 Opposition MPs could send an important message to the Cabinet. The message is that it is the people who are Sovereign, not the Parliament, and certainly not the Executive. On issues such as "changing the structure of a fundamental branch of the State" as Professor Trevor Munroe puts it, "Best practices recommend a referendum especially where there is an important and contentious moral question and where the political parties and the citizenry are divided". Dr. Munroe deserves commendation for
insightful presentation.
If the former Independent Senator felt constrained to vote with the Government in the Senate, it is highly unlikely that five Government M.P.'s would vote with the Opposition or even abstain. The system requires a straight party vote.
THE CABINET
In reality, it means that it is the Prime Minister and by extension his Executive to whom the request for a formal undertaking has to be made. Our Legislature is a mere extension of the Executive. Power is concentrated in the office of the Prime Minister. Only a Parliament, independent of the Cabinet, where M.P.'s can pursue separate career paths, stands a chance of voting nationally on fundamental issues such as - "changing the structure of a fundamental arm of the State".
The call made by the Farquharson Institute of Public Affairs, the Independent Jamaica Council for Human Rights, Jamaicans for Justice, the Jamaican Bar Association and the Jamaican Chapter of Transparency International should not be treated lightly. As Senator Bruce Golding points out, their position is supported by the Opposition and several other Jamaican citizens. Significant elements in the media have also joined in the call for the people to decide their own destiny - through a referendum. The Government responds in part that they need to have ratification to facilitate access to funding as well as to further influence the evolution of the CCJ. All of this is putting the cart before the horse.
LEGITIMACY
Advisor to the current Attorney General, David Coore, put forward some disturbing views in a recent JIS News interview. He argues that by going the referendum route, the "legitimacy of Parliament" would be denied and concludes that by so doing "you are denying the legitimacy of the democratic process". Isn't it the opposite which is true? He further argues that Parliament has had to decide many fundamentally important issues. Failing to make any distinction between issues he implies that Parliament should decide every fundamental issue. This point of view fuels the concerns raised by the Civil Society Organisations as to the permanence of the proposed C.C.J. and the security of it's Judges. Serious warning signals are being flashed.
When the method of changing critical structures in the Constitution by a simple majority in Parliament is used TRUST looms large as a major factor. TRUST is not a strong suit for the Government at this time.
Taking the route of a Referendum will take more time and undoubtedly demand something extraordinary from our leaders. The Prime Minister and his Cabinet colleagues, to whom the request for a formal undertaking in Parliament has been made, should recall the saying: "Long road bring sweat but short cut draw blood". One Love, One heart.
A dental surgeon, Dr. D.K. Duncan is a former General Secretary and Minister of Government in the PNP Administration of the 1970s.
