Sun | Dec 4, 2016

EDITORIAL - Mr Seaga's contrived logic

Published:Thursday | January 29, 2015 | 12:00 AM

The idea would stir nary a thought in this newspaper. But Edward Seaga apparently fears that many who know of his pedigree as a nationalist recalled his role as "the right campaigner of Sir Alexander Bustamante in the referendum which decided whether Jamaica would be an independent country".

That was more than half a century ago, when Jamaica left the West Indies Federation. The former prime minister's current campaign, which understandably raised his concern about how he may be perceived, is against Jamaica's entry into the Caribbean Court of Justice, which several regional countries wish to have replace the UK-based Privy Council as their court of last resort.

Although it has not yet acceded to the court, Jamaica is signatory to the agreement and a Jamaican is on its bench. Others, conceivably, could join. But Mr Seaga is wary of the quality of the jurisprudence that would be on offer from any final court, whether, apparently, it is in Jamaica or elsewhere in the Caribbean.

He wrote in this newspaper: "If I am in a plane high in the sky that is in trouble, I want to know that the pilot is the most experienced possible, not one who is in the process of gaining experience or is about to start."

Strip Mr Seaga's argument to the core and the message is that he wants the final dispensation of justice to remain at the other side of the Atlantic, in a court to which most Jamaicans, except for the well-to-do and those convicted of murder and who can look forward to pro bono representation by English lawyers, do not have effective access.

Or, if there is to be a change to a final court in Jamaica or in this region, then, Mr Seaga argues, there is need for a plebiscite to disengage from the Privy Council. What, however, is interesting about this conclusion is the contorted logic he employs to reach this point.

First, he seeks to marshal authority on the subject by reminding that he was a member of the parliamentary commission that drafted Jamaica's Constitution, and recalls that rights that predated the Constitution coming into force remained after its promulgation - the Royal Prerogative to Appeal to the Queen via the Privy Council being among them.

Amazingly, he declares: "The only way in which this right can be aborted is by agreement of the people, that is, by referendum."

Not even the Privy Council believes this. The right of appeal to that court is guaranteed under Section 110 of the Constitution, which is not an entrenched clause.

But in their 2005 ruling in a case inspired in part by Mr Seaga and the Jamaica Labour Party, which he then led, the Privy Council held the provision proving appeal to that body "could have been repealed by the votes of a majority of all the members of each House, since Section 110 is not entrenched. The result would have been to constitute the Court of Appeal as the ultimate appellate tribunal in and for Jamaica".

Indeed, if the constitution commission and the Parliament intended that the repeal of the right to access to the Privy Council should be the subject of a referendum, then they would have explicitly said so, as is the case in the constitutions of some eastern Caribbean countries.

The fact that a Court of Apeal would be replaced by a court of superior jurisdiction to the Court of Appeal required that the new court have the same level of protection as that court - which suggests entrenchment that requires parliament passage with a two-thirds majority in both chambers of the legislature. It is a threshold that we hope will be met.