Editorial | CCJ offers PM legacy
Having acknowledged the near impossibility of meeting its May timetable for tabling the bills to make Jamaica a republic, the Holness administration should pivot to how it should have started in the first place: withdrawing from the Privy Council and acceding to the Caribbean Court of Justice (CCJ) as Jamaica’s final court.
Joining the CCJ doesn’t carry the potentially fraught constitutional requirement of a referendum. Yet, it has nearly as much symbolic, and even greater practical value, as removing Britain’s king as Jamaica’s head of state. It would also widen access (on average only around four Jamaican cases are decided by the Privy Council annually) to the highest court to far more Jamaicans, who, in exercising that right, appeal to a Majesty in a country that erects barriers to their entry.
Moreover, by acting on the CCJ now Prime Minister Andrew Holness would be assured of leading Jamaica into a critical aspect of its constitutional evolution. Given the time, and the uncertainties of elections in democratic politics, he can’t be certain of doing so if he awaits the complex process for ditching the monarch. He could be overcome by events.
When the Government launched the Constitutional Reform Committee to review the unimplemented recommendations of previous commissions as well as offer new ideas, the administration’s intention was to quickly reaffirm consensus for scrapping the king and for appointing a non-executive president as head of state. It hoped to table the bills for the transition in May.
It broadly succeeded with the former. But for a few, though important minutiae, the committee agreed with the old idea of a non-executive presidency.
The latter has proved problematic. The Government has faced criticisms for a process that would allow too little, if any, public consultation – a shortcoming the committee has been scrambling to fix. It has held two town hall meetings so far.
Last week the information minister, Robert Morgan, conceded that the May deadline for the constitutional bills was near impossible.
“I don’t know if it’s gonna make it,” Mr Morgan told journalists, blaming the likely delay on the demands for consultations.
It seems likely that it will now be several weeks, if not months, before it is politically prudent for the Government to take the bills to Parliament, lest it further rile a public already angry over the administration’s award of huge pay increases to ministers and parliamentarians.
Further, the clauses that establish Jamaica as a monarchy are deeply entrenched in the Constitution. Bills to amend them have to sit on the table of the House for three months before being debated, and a further three months after the debate until they are voted upon. They also require a two-thirds majorities in both houses of parliament for approval
Parliament’s vote would then have to be approved in a referendum.
The point is, time is slipping away from Mr Holness and his governing Jamaica Labour Party (JLP). It now seems that the earliest the bills could clear Parliament and the referendum held is early in the second quarter of 2024. It could be later.
Mr Holness faces an election by February 2025. He could bundle the referendum with that poll. But a referendum can be an exceedingly iffy exercise for the government if opposition parties are successful in turning questions on a specific issue into a plebiscite on the administration. While the opposition People’s National Party (PNP) is a long-standing supporter of Jamaica becoming a republic, conceivably it could find a way to use the referendum as a wedge against the government.
This doesn’t mean that Mr Holness couldn’t carry the referendum as well as win a national election – whether they are held separately or together.
But if Mr Holness wants certainty in his legacy for a big constitutional achievement, he should pivot to the Privy Council and the CCJ.
Indeed, based on its limited published minutes, the Constitutional Reform Committee acknowledged that “appealing to the Judicial Committee of the Privy Council was seen as tied and related to the monarchy itself”. Some members felt that becoming republic “suggested/required the complete abolition of the monarchy (which also) necessitated the removal of the Judicial Committee of the Privy Council as the final court of appeal”.
The difference among members appeared to be over process and sequencing, rather than substance. Mr Holness, however, has, potentially, the problem of time and the uncertainties of politics.
Leaving the Privy Council, however, is a less troublesome process. Though the requirements are largely the same as ditching the monarch, it doesn’t need a referendum. Further, the opposition PNP, one of the architects of the CCJ, could hardly withhold its support in the Senate for the two-thirds majority for the bills to pass.
Mr Holness’ real obstacle to leaving the Privy Council and acceding to the civil and criminal jurisdictions of the CCJ is his historical “opposition” to the court, which no one believes is anchored in any philosophical aversion to the court. The prevailing view is that his stance was loyalty to and solidarity with his mentor and former JLP leader, Edward Seaga.
A shift now, four years after Mr Seaga’s death, would cost Mr Holness little in political capital. And it would bring value to Jamaica, which contributed heavily to the trust fund that sustains the CCJ, which is one of the world’s best protected courts. The CCJ is also highly praised for the quality of its jurisprudence.
Jamaica already participates in the CCJ, in its role as the interpreter of the treaty governing the Caribbean Community, the regional single market and economy group of which the country is a member. In the circumstances, it would make little sense for Jamaica to establish a domestic third-tier court.
Mr Holness should grasp his opportunity.