A. J. Nicholson | CCJ: Perfect legislative initiative

Dr Lloyd Barnett, correctly referred to in a recent Gleaner editorial as “a lawyer and constitutional scholar”, has impactfully alerted us in an article in the Sunday Gleaner to the longstanding reality that: “An important factor that must be taken into account is that the experience of many countries is that it is very difficult to obtain a majority vote of the electorate for constitutional changes, especially if a major political party is opposed to the change. It is also the experience that, where non-controversial as well as controversial issues are put to the electorate (for example, in a referendum), there is likely to be a generally negative vote so that the non-controversial matters suffer as a result.”

Having frankly and authoritatively raised that red flag, Dr Barnett proceeds to remind that, in respect of establishing the Caribbean Court of Justice (CCJ) as our final appellate court:

“One of our two major political parties, the Jamaica Labour Party, has advocated that the matter be decided by means of a referendum – putting the issue to the electorate – although that party has not committed to supporting that change.” Nonetheless, he advises that: “... the entrenchment of our final Court of Appeal is a matter of fundamental principle, which the Agreement Establishing the (CCJ) expressly declares. We should therefore include the adoption of the CCJ as our final Court of Appeal in the referendum initiative.”

Now, the adoption and entrenchment of the right of appeal to CCJ as our final Court of Appeal may be accomplished by means of one of two routes: either by means of putting the issue to the electorate in a referendum, or by a two-thirds majority vote in each House of Parliament, which would require the support of both political parties in the Legislature.

We are certain that such a mission cannot be legally accomplished by means of legislation that has enjoyed only ordinary passage by a simple majority vote in each House of Parliament.

There is nothing to suggest otherwise in contemplating the judgment of our highest court, the Judicial Committee of the Privy Council, in a matter that came before their Lordships after a People’s National Party (PNP) government had sought the adoption of the CCJ, as stated by Dr Barnett in his article, by means of “a defective legislative initiative”.

Indeed, some years later, in 2015, when another PNP government sought its adoption and entrenchment by means of the two-thirds majority vote in each House, Dr Barnett publicly joined with the Jamaican Bar Association and some seven other organisations in urging support, thereby endorsing that effort as a perfect legislative initiative.

For what that initiative really entails is the expansion of the panoply of rights to which our people are entitled: The right to unhindered, affordable access to all our courts of law, including our final court of appeal. That is what the constitutional change from the right to appeal to the Privy Council to a right to appeal to the CCJ is all about.

It is, in essence, an addition to the new and improved rights that have been entrenched in our Constitution by the passage of the Charter of Fundamental Rights and Freedoms by means of a two-thirds majority vote in each House of Parliament without any opposition raised or any advocacy for a referendum coming from any quarter.

The Gleaner editorial of Wednesday, December 9 has accurately identified the genesis of opposition to a regional court, which for decades enjoyed bipartisan support, that so unfortunately came to be attached to this area of the constitutional reform process.

When British governors of the colonies here in the Caribbean at their meeting at Bridgetown in 1947 recommended, inter alia, the establishment of a regional court to serve as the final appeal tribunal in place of the Privy Council, there was no voice of opposition to the idea.

When, during the 1960s, the Organisation of Commonwealth Caribbean Bar Associations (OCCBA) strongly made a similar suggestion, there was not a voice in opposition to that positive game-changing proposal.

Markedly, a resolution for the urgent establishment of the regional court tabled by a Jamaica Labour Party (JLP) government was adopted at a Caribbean Community Heads of Government Meeting right here at Kingston in 1970, under the chairmanship of then Prime Minister Hugh Shearer.

FULLY ACCEPTED REPORT

And when the Time for Action Report of a high-powered CARICOM committee, under the chairmanship of Sir Shridath Ramphal, recommended in the early 1990s the establishment of a regional court with both an original and a final appellate jurisdiction, there was not a single dissenting voice to be heard.

In 1995, our Parliament fully accepted the Report of the Joint Select Committee on Constitutional and Electoral Reform, under the chairmanship of the late David Coore, which included recommendations that there should be a new Charter of Rights and that Jamaica should abolish appeals to the UK-based Privy Council and subscribe to a regional court when established.

The Patterson administration put in place a broad-based preparatory committee which included invited representation, for example, from the Bar, the human rights groups, the Church, academia, the Opposition, the trade union fraternity and others, to consider issues relating to the policy development regarding the Caribbean Court.

The JLP Opposition leader was in those days being walloped at the polls; his party had not won an election since the 1983 PNP-boycotted exercise, and he had publicly embarked upon an “Oppose, Oppose, Oppose” crusade. The pursuit of establishing the regional court sadly fell into that group of government policy initiatives to be opposed. And since then, we have had a crisis of partisan political posturing, so much so that he set his face sternly against Jamaica subscribing to the promised regional court, making quite extraordinary claims, for example, that its establishment would herald an attempt at federation through the back door, and that pure justice came from the Privy Council.

Therein lies the birth of the wedge relating to the regional court, properly identified in the Gleaner editorial, right at the doorstep of Edward Seaga, who went as far as clamping on to his opposition to the Court the insistence of the use of the most difficult and unmanageable change agent of all, the holding of a referendum.

So that the JLP never attended even one of those preparatory meetings over the years. On the other hand, the attendance and contribution of the Bar Association, for example, was signally instrumental in the development of the seminal protocol that was established for financing of the CCJ and which properly insulates it from political interference.

And so, we are getting there. The country owes a profound debt of gratitude to the Gleaner editorial board for finally publicly indicating and zeroing in on the source of this opposition to the CCJ and this call for the holding of a referendum. The editorial, under the heading ‘Mr Holness’ great opportunity’, pointedly observes:

“... Mr Holness’ party, under the leadership of the prime minister’s mentor, Edward Seaga, painted itself as a reflexive and emotive critic of the regional court. Mr Seaga is no longer living, and Mr Holness has politically feasible and eminently explainable reasons for extricating himself from that legacy.”

It continues: “It has long been a source of frustration for this newspaper that the JLP has maintained a contrarian position towards the CCJ, blocking consensus on the court. “

I am persuaded that Dr Barnett and the legal fraternity are equally frustrated, for they have had to live with the agony faced by multiples of economically challenged litigants who, now for almost 200 years, have been obliged to abandon the pursuit of their rights, for reasons, chief among which is the unaffordable monetary expense involved in appealing to the Privy Council in far away London, England.

That frustration has led both Dr Barnett and the Gleaner editorial board to urge Mr Holness and the JLP to join in bringing about consensus with the PNP for a referendum to be held.

But importantly, at the same time, there is no escaping the warning of the resoundingly ominous factor that the studied history reveals, that not even consensus and a lack of controversy can ever guarantee a positive and smooth outcome in placing such issues before the electorate.

SWORN DUTY

So, what is to be done? Mr Holness and the governing JLP should be reminded of their sworn duty to pursue the best interests of our people, and urged towards the rightness of finding consensus with the Opposition PNP for the long overdue adoption and entrenchment of the CCJ by means of a two-thirds majority vote in each House of Parliament.

Recall that the Jamaican Bar Association has publicly indicated that, by resolution, it has endorsed such a procedure as a perfect legislative initiative ( The Gleaner, Wednesday, October 14, 2015: ‘The CCJ as Jamaica’s final appellate court’).

Other changes such as moving away from the monarchy, for which the Constitution requires that a referendum be held, fall within a totally different category.

And, there certainly must be extremely powerful reasons why not a single one of the 40-plus former British colonies that have succeeded in de-linking from the Privy Council and subscribing to their own final appeal court – from Canada, through the several African and Asian countries, on to Australia and New Zealand and recently the four Caribbean territories – has done so by the referendum route. Jamaica is being pushed to go where all before us have steered clear of treading.

Staring us in the face, directly in line with what the conventional wisdom dictates, is the stark example of the fiasco that has ensued in the wake of each of the recent referendum attempts in the three Caribbean countries whose independence constitutions, most unusually, require the holding of a referendum for the purpose. That is where the referendum road leads; not a prudent path for the structure of the judiciary.

Dr Barnett, of course, means well in his suggestion that, as a cost-saving device, the CCJ issue could be included in a referendum exercise which may be linked to the holding of the next ‘local and municipal elections’.

The experienced political antenna, however, immediately causes the mind’s eye to foresee the agitated councillor candidate on the hustings atop the political campaign platform in Trelawny or St Thomas railing against poor cemetery cleaning and garbage collection, followed by a tirade against some judicial process or other, firm in the view that all such issues belong in the same discussion; irreparable damage can easily be done to the judiciary.

Let the toxic opposition – the “contrarian position”, including the (perhaps seductive) insistent call to employ that thorny referendum procedure for our accession to the regional court – be interred with its progenitor, Edward Seaga.

That, in full, with respect, is Mr Holness’ “great opportunity”; it is also Jamaica’s. And this can be accomplished and now finally put behind us during 2021!

A.J. Nicholson is the former minister of justice. Send feedback to columns@gleanerjm.com