Robert Buddan
THE BAR Association of Jamaica has pledged to campaign for a referendum on Jamaica's membership of the Caribbean Court of Justice (CCJ). There might be two justifiable grounds for this. One might be that the constitution requires this. The other could be that this is such a momentous decision that, constitutional requirement or not, it is the democratic way to make such a decision. There might be unjustifiable grounds as well.
CONSTITUTIONAL
REQUIREMENT
There are three types of provisions in Commonwealth Caribbean constitutions for withdrawing from the British Privy Council. In some countries like the Bahamas, the constitution allows for withdrawal by a simple legislative procedure and for Parliament to assign the Council's functions to any other body created for that purpose. In other countries like Barbados, Jamaica and Trinidad and Tobago, a special majority vote of Parliament allows this. In Eastern Caribbean states like Dominica, St. Kitts and St. Lucia, complex referendum requirements exist.
In Jamaica, a referendum is required to change the entrenching section; the supreme law clause; the provisions establishing Parliament and regulating its composition; the qualifications for becoming Senators and members of the House of Representatives; the dissolution of Parliament and the time for holding general elections and establishing republican government. There is no requirement that there be a referendum to withdraw from the Privy Council or to join a regional body.
DEMOCRATIC REQUIREMENT
Neither Jamaica nor any other country held a referendum to join the West Indian Federation, the Caribbean Free Trade Association (CARIFTA), the Caribbean Community (CARICOM), the Association of Caribbean States (ACS), and the United Nations and there is no call from any quarter for a referendum for Jamaica to join the CARICOM Single Market and Economy (SME). All of these constitute momentous decisions.
In contrast, Britain held a referendum to join the European Community in 1975 and some European countries held referenda to join the European Union more recently. There has been no call or any claim that Jamaica must, as a democratic requirement, hold a referendum to join any of the important regional and international organisations, many of which make decisions that have binding effect on Jamaica's policies.
UNJUSTIFIED REQUIREMENT
Neither the laws of the Constitution nor the spirit of democracy has moved the Bar Association to campaign for a referendum before. In fact, no human rights issue has stirred the Bar Association to launch any public campaign either. Even an issue like the death penalty a fundamental right to life issue has not evoked calls for a referendum.
Why then has the Bar Association been so visible and vocal on whether or not Jamaica should withdraw from the British Privy Council? I think an important clue comes from constitutional lawyer, former lecturer in law and former Minister of Government in Grenada, Francis Alexis.
In his study of Caribbean constitutions he says, "Often there is a marked identity between those who champion the propertied interests and those who contend for the retention of appeals to the Privy Council. They had their way over both matters at the drafting of the original independence Constitutions." There is a marked identity because there is often a common interest between lawyers and property owners. The Wooding Commission on Constitutional Reform reported in 1974 that lawyers there too had made submissions for Trinidad and Tobago to retain appeals to the British Privy Council.
Trevor Munroe's study of constitution-making towards independence in Jamaica found that a leading lawyer and man of the propertied class in Jamaica, Leslie Ashenheim, had successfully argued to entrench property rights in Jamaica in spite of misgivings by some members of the constitutional committee. In the end, property rights were entrenched but no other civil and political rights were. This means that property rights were given stronger protection than rights of the ordinary people.
HIGH RIGHTS
AND HIGH APPEAL
Lawyers representing business persons were successful in getting the Jamaica Constitution to treat property rights as the highest rights for appeal to the highest body of appeal, the British Privy Council. To make this acceptable, the right to appeal in civil and criminal matters was included. This has come back to haunt us. On the one hand, the propertied have their right of appeal but by protecting appeals to the Privy Council, they protect the right of appeal of the enemies of property and of all society, criminals appealing against death row sentences.
Section 110, sub-sections (1) and (2) of the Jamaica Constitution does say that appeals to the British Privy Council exist, "as of right" regarding questions of property and marriage (which is also property-related) where the local court of appeal regards them as being of great general or public importance; or in regard to the interpretation of the constitution (on these matters).
REFERENDUM, YEA OR NAY
A referendum would provide popular legitimacy for the CCJ and the basis for entrenchment. It seems to me that the right way to go about the CCJ issue is to go ahead with ratification and have a referendum on the proposed and long awaited (and delayed) new Constitution. This new Constitution will include an entrenched clause for the CCJ. A referendum ballot could separate special issues in the new Constitution for separate votes, including a vote on the CCJ.
What I'm afraid of is that the call for a referendum on the CCJ is being used to separate the issue from larger constitutional reform. Furthermore, experience shows that various interests can and might then put roadblocks in the way to stall a referendum on the CCJ so that we remain dependent on the Privy Council. For example, the Bar Association's insistence that all member countries should entrench the CCJ in their constitution is out of Jamaica's control.
According to Bruce Golding, the JLP's position on the CCJ has changed. It is now in favour but wants the CCJ entrenched through a referendum right away. It is clearly less costly to have a single referendum on constitutional reform with a ballot allowing for separate votes on special issues. If the JLP's position has changed, it would be good for Mr. Patterson and Mr. Seaga to resume their leadership summits and make clear what the approach should be.
REGIONAL INTEGRATION
At the end of the day, the issue is really about the Caribbean Single Market and Economy (which requires us to join the CCJ). This is fundamentally about national interest. The Bar Association is turning it into an issue of rights but about the rights of the propertied class.
Should the rights of the propertied few take precedence of the rights of the many? The Single Market and Economy (SME) will extend the rights of Jamaicans to freedom of movement, trade, property, speech, religion, etcetera, right across the member countries of the region. The CCJ will be the mechanism through which the rights of Jamaicans will be protected equally with the rights of others in the rest of the region.
It will extend national rights to regional rights. The British Privy Council cannot do this. The CCJ will protect regional standards the same way the European Court of Justice has extended and strengthened the rights of the British to be on par with those in Europe.
Referendum has a democratic ring to it. But separated from broader constitutional reform, it might be democracy for the few.
Robert Buddan lectures in the Department of Government, UWI, Mona. E-mail: rbuddan@uwimona.edu.jm
