Orville Taylor, Contributor
A decade ago when I had my entry in media, I gave unequivocal support for the idea of a regional court of appeal to replace the Privy Council. Having an institution synthesising the essence of Caribbean intellect and unity was so enticing that I almost expected someone to dance over to my table top and ask for a tip. "Up with the CCJ (Caribbean Court of Justice) and put the Privy Council in a hole!"
There were two salient and imposing arguments. First, it was about sovereignty. Second, nothing convinced me, despite the niggling question of justice reform and corruption, that our regional judges were less capable than a set of British lords, some of whom were not even lawyers of the stature of Jamaican jurists.
Nonetheless, inasmuch as my sense of regionalism and Caribbean identity is still as strong as the lingering odour of jackfruit on the fingers after an overnight binge, I absolutely don't want the Government to push it down the populace's throat and tell us to simply suck it up without protest.
This fundamental change in our governance structure is no light matter, and like Jamaica Labour Party (JLP) heavyweight Delroy Chuck, I believe that this should be wedged deeply in our Constitution. Like his homophonic carrier on Mount Rosser, Chuck is difficult to go around on this one. Rightfully said, it must be legally institutionalised under the Constitution; and this Rhodes Scholar doesn't have to rummage through notes to whisk out a spirited argument. Otherwise, with a simple two-thirds majority later, when the Labourites finally win an election, assuming that Andrew Holness is still young enough to lead the party, the JLP will engage reverse gear, based on pre-signed letters of resignation of its legislators.
There is an argument that other countries have gone the way of replacing the Privy Council without a national referendum. Indeed, just last week, an attorney noted on a television programme that a critical amendment to the Jamaican Constitution, the 2011 Charter of Rights, was neatly done with bipartisan support and with little fanfare, although it took more than a decade to come to fruition. Yet, this might be the example that begs the question, because the narrow group of legislators blundered or conspired to reduce the original right of freedom of association under the erstwhile Sections 13 and 23.
Therein, Section 23 explicitly guaranteed the right to form and be members of trade unions. Under the new charter inserted by two political parties built on the backs of trade unions, this provision is as missing as a party leader at a media briefing. Bet you that only now they are aware of their faux pas, unless it was deliberate.
As regards the court, as an assertion and affirmation of our Independence, one has to now ask, how does belonging to a smaller version of the Commonwealth (of former British colonies) differ from membership in the bigger entity?
Final appellate CCJ
The CARICOM that I envisioned was a modern version of the failed West Indian Federation. Beyond mere similarity of design in passports, all West Indians, in particular, should be CARICOM citizens. Therefore, the debate has long gone past common labour standards, social security, and free movement of labour and residence. A final appellate CCJ must be connected to a Caribbean economic and political body, much like the European Union (EU). Anything less is to cough a cup of mockery.
It is repugnant and downright stupid that we can have a CCJ when its subjects have to get permission to move from one state to another. Entering, Trinidad a year ago, with a passport marked CARICOM, I, a University of the West Indies (UWI) lecturer, going to a conference at my 'workplace', and just last week going to St Lucia, for another UWI conference, had to explain to an immigration officer why I was entering their countries, and had my alien passport stamped.
Not a benign stamp as if I were a Swiss entering England, it limited my stay to a period just as short as when I visit the United States and explicitly barred me from seeking employment. Simple talk; if we are not a political union, we cannot have a regional court that is the ultimate determinant of our juridical destinies.
Despite the apartheid system that gives privileged CARICOM citizenship to elites who still have to apply for it, there is, in principle, no real difference between the access and residential rights of the average Jamaican who visits tiny Barbados or Trinidad, and one who goes to the bigger old mother country, England.
Ask Shanique Myrie and the myriad Jamaicans and Guyanese who get intimate knowledge of the Sir Grantley Adams and Piarco airports. This is not a question of the discretion or justification of the behaviour of the law-enforcement officials at ports of entry. There is evidence that CARICOM criminals have integrated much better than the governments, and the human-trafficking network already makes a joke of the protocols on 'free movement of labour.'
Microcosmically, without free movement of personnel and regional citizenship, the CCJ is the same as the Privy Council, with a set of foreigners (Jamaicans included) who pass judgment on us. Thus, rather than being the bastion and icon of regional pride and identity envisaged by Norman and Michael Manley, it is nothing than an unpopular ego trip of an arrogant government, massaging its ego and masterfully debating with itself.
The reputable Don Anderson polls say that 60 per cent of Jamaicans want a referendum or a national poll. Does the PNP think that it has a larger support than 60 per cent among electors? Moreover, while a final appellate CCJ is still desirable, we are not institutionally ready as a region and not attitudinally ready as a people. And if the cash-strapped Government has so much money to spend to make its dream happen, why doesn't it use the money to finish the FINSAC enquiry?