THE EDITOR, Sir:
In the discussion of transferring original appellate jurisdiction (OAJ) from the Judicial Committee of the Privy Council (JCPC) to the Caribbean Court of Justice, the authorities and most commentators speak to two levels of parliamentary sovereignty.
The first level speaks to causing the transfer without entrenchment of the transfer in the Jamaican Constitution and where Parliament, with its two-thirds majority, needs only to amend Section 110 of the Jamaican Constitution by virtue of Section 49 to cause this transfer. In so doing, the citizens of Jamaica would not be deprived of the protection of the law by virtue of Section 13(a).
Section 13(a) speaks to protecting Jamaican citizens from unconstitutional enactments, amendments of application of laws in Jamaica. Section 49 allows for Parliament to amend Section 110 of the Constitution referring to appeals to Her Majesty in Council.
The second level of parliamentary sovereignty speaks to where Parliament transfers the power to the people to decide by referendum whether the transfer of OAJ from JCPC to CCJ is to be entrenched by amending Section 49.
Parliament is obligated, however, to have a referendum by exercising its second level of sovereignty to amend Section 49, to entrench the transfer to be in full compliance with the right of the the citizens of Jamaica to petition the Queen. The Jamaican citizens' right to petition Her Majesty in Council existed prior to runs parallel to, and survives Jamaica's Order in Council (Constitution).
Parliament alone, with its two-thirds majority, cannot constitutionally cause the transfer to the CCJ, nor can the citizens of Jamaica alone easily cause such transfer by referendum unless they take steps to fundamentally transform Parliament to enable it to do the citizens' bidding.
Parliament can either be facilitator or obstructionist. It must decide. But any attempt by Parliament alone to unconstitutionally effect the CCJ transfer is doomed for failure.
HUMPHREY L. MCPHERSON