Thu | Sep 23, 2021

Arnold Nicholson | Stop deafening your ears on the Privy Council

Published:Thursday | July 22, 2021 | 12:05 AM

THE GLEANER, in its editorials over time, has not usually taken time to categorically point out that there is no constitutional requirement for the holding of any referendum for Jamaica to delink from the Judicial Committee of the Privy Council and to subscribe to the Caribbean Court of Justice as our court of last resort.

The Gleaner has now done so. In its Thursday, July 15 editorial, it stressed: “ ...Mr Holness also wants to bundle into the referendum the question of Jamaica ... leaving the Judicial Committee of the Privy Council and making the Caribbean Court of Justice (CCJ) its final court of appeal, although a referendum is not a constitutional requirement in...(that issue)”.

That is a statement of signal importance which echoes the position publicly acknowledged by The Jamaican Bar Association over five years ago. And since The Gleaner editorial board has been addressing the inappropriateness of Jamaica remaining tied to the jurisdiction of the Judicial Committee for a century and more, its statements on the subject certainly cannot be side-stepped.

It is good, then, that the board has joined in bringing to the attention of the public once again that this clamping of a referendum exercise on to the procedural requirements for Jamaica’s accession to the CCJ sprang from a partisan political insistence injected into the public discussion since the late 1990s by the Jamaica Labour Party (JLP), propelled by its then leader, Edward Seaga.

It is an insistence that has erected a sturdy stumbling block in the path of the historic initiative by Jamaica and, moreso, given rise to an outrageous assault by the leadership of the JLP on the constitutional arrangement for membership in Jamaica’s Upper Chamber of Parliament.

Moreover, the leadership of the JLP have stubbornly deafened their ears to the warning of the irreparable damage that could be done to the judicial arm of government by placing this kind of issue on to the political hustings. No former colony of Britain that has successfully moved away from the British institution and established their own final court has sought to travel the referendum route.

Chaotic outcomes

Recent such unprecedented steps right here in the Caribbean region have unsurprisingly led to chaotic outcomes. And the conventional wisdom is that there would be an even worse outcome, by far, should Mr Holness be allowed to have his way for Jamaica to “bundle” this question along with other issues into one referendum exercise.

According to the editorial, Dr Lloyd Barnett, the constitutional scholar, in an article last December in this newspaper had hoped that certain constitutional changes, including accession to the CCJ, would be in place by the time Jamaica came to celebrate 60 years along the independence journey in August 2022.

That is not likely to happen. But should Mr Holness be “excited into action”, as the editorial urges, the “average Jamaican” could be accorded the priceless 60th anniversary gift of the privilege of unhindered and affordable access to his final court of appeal.

And Mr Holness ought to be excited into action by the exhortation of Dr Barnett in an article almost six years ago, on October 6, 2015, titled ‘Pro-CCJ vote a no-brainer’, in which senators were urged to “take into account the interests of the Jamaican people”, on the clear understanding that:

“...(T)he Privy Council is virtually inaccessible to the majority of Jamaicans who have court cases, because of geographical hurdles and financial barriers.

“Can anyone responsibly support and vote to retain the maintenance of the present system when the average Jamaican is unable to gain access to the highest court in the system? Can a conscientious Jamaican in 2015 vote against the ‘reparation’ of our self-esteem, sense of independence and detachment from imperial institutionalism?”

The bills to begin the process anew are still securely filed in the Attorney General’s Chambers. If they are unpacked and tabled in the House of Representatives before the 59th Independence anniversary next month or soon thereafter, the full support of legislators on both sides of Parliament would allow for the constitutional entrenchment to be finally realised for the 60th anniversary.

Should not the paramountcy of the interests of the Jamaican people excite the JLP Government into action so that the average Jamaican may also gratefully celebrate the gift of that game-changing privilege, too long denied to generations, alongside the celebration of the gift of being received into the rank of Her Majesty’s Privy Council that has been granted to Mr Holness?

A.J. Nicholson is a former minister of justice and attorney general. Email feedback to columns@gleanerjm.com.