Editorial | CCJ a priority, too

It is not apparent that anything fundamental shifted at the recent Vale Royal Talks that caused the Opposition to finally name its two members of the committee that will make recommendations for reforming Jamaica’s Constitution.

Indeed, Prime Minister Andrew Holness’ priority – as has emerged in the last 18 months – is the removal of the British monarch as Jamaica’s head of state and for the island to become a republic with a non-executive president. There is no sign that Mr Holness and his Government are keen, or see any great urgency, in leaving the Judicial Committee of the Privy Council as Jamaica’s final court and acceding to the criminal and civil jurisdiction of the Caribbean Court of Justice (CCJ).

In fact, the legal and constitutional affairs minister, Marlene Malahoo Forte, has suggested that accession to the CCJ will be among the second tranche of issues to be addressed in the reform process. So, getting around to the CCJ could be long delayed, given the time that it will take for the committee to complete its work and the involved and lengthy requirements for amending the Constitution’s deeply entrenched provisions, like those establishing the head of state.

While this newspaper is absolutely in favour of Jamaica ditching the monarchy, there is no greater urgency in accomplishing that than changing an arrangement where Jamaicans seeking justice from their highest court petition the very monarch, whose power, in this respect, is exercised by his judicial committee. As symbols of Jamaica’s tethering to its colonial past, Charles III as monarch of Jamaica and the Privy Council as its final court are equally potent.

PRACTICAL VALUE

And beyond its symbolic and psychological merits, decoupling from the Privy Council would bring immediate practical value of widening citizens’ access to the top tier of the justice system.

The issue of the monarchy and the Privy Council/CCJ have been on Jamaica’s agenda for decades, over a 100 years with respect to the Privy Council when questions began to arise of whether jurists in far away London, and culturally removed from the island, could adequately dispense justice for Jamaicans. Both matters, however, proceeded in fits and starts, subject to the vagaries of domestic politics.

At one stage, the disagreement over republicanism was whether there should be a ceremonial or executive presidency. That was settled in the 1990s in favour of the former. And while Prime Minister Holness’ Jamaica Labour Party (JLP) was once a proponent of a regional final court, Edward Seaga, the prime minister’s mentor and one of his predecessors as JLP leader, repudiated the party’s position on the court when the CCJ was being established in the late 1990s. However, Bruce Golding, Mr Holness’ immediate predecessor as head of the JLP, appears to have since rescinded his own opposition to the CCJ.

While in government, the People’s National Party (PNP) attempted to accede to the CCJ’s criminal and civil jurisdiction, taking the island’s participation beyond the court’s original jurisdiction as the interpreter of the treaty establishing the Caribbean Community. That effort faltered on the need to get at least one JLP senator to vote in favour of the bills, to meet the required two-thirds majority in either House of Parliament for their passage. The JLP has said that the question of the court must be decided in a referendum, which is not a requirement of the Constitution. Initially, it was a strategic political posture which the party finds difficult to transcend.

NEW MOMENTUM

Having been stalled for over a decade, the question of removing the monarchy gained new momentum in 2020 after Barbados’ Prime Minister Mia Mottley announced that her country would become a republic. That happened a year later. Last March, Prime Minister Holness told Prince William, the future king, that Jamaica was “moving on”.

This week, Malahoo Forte lamented the indignity of Jamaicans needing visas to enter the country of their head of state, a requirement for Jamaicans travelling to Britain. She did not mention what happens if they wanted to petition His Majesty on matters of justice. The same thing applies if someone wants to attend a Privy Council hearing in person.

Beyond that, accessing the UK-based court is expensive. It is little wonder that only a handful of Jamaicans ever petition His Majesty on matters of justice. When they do, it is mostly appeals against murder convictions, usually argued pro bono by British lawyers.

The head of state is the living symbol of a country’s sovereignty and aspirations. It makes sense that Jamaica does not wish to continue to outsource that role to someone across the Atlantic who has little in common with the vast majority of its citizens, whose expectations from sovereignty include their right to justice – not just notionally, but in real and concrete terms. Which is what accession to the CCJ – which is highly insulated against interference and has a reputation for top-quality jurisprudence – would do.

Acting in its original jurisdiction in the Shanique Myrie case, the CCJ established community law that allows all CARICOM citizens, by right, entry to member states, including the one where the court is headquartered.

The PNP has not said what posture its members will adopt at the constitutional committee. Their first job should be to convince other members of the logical of early accession to the CCJ.