Gordon Robinson | Begin again!

A Constitution is to the building of a nation as a foundation is to the building of a house.

A foundation sets the framework within which the house must be built. Then walls and roof are added but always strictly within boundaries set by the foundation. Similarly, laws are a nation’s walls and roof. A house’s interior contains furniture, appliances, decorations and tools for entertainment, work or hobby. In a nation, they represent infrastructure.

Outside the house there’s a garden or yard for distance from external dangers and a fence for protection and enforcement. In a nation borders and security forces are the nation’s fence protecting the people from harm and ensuring compliance with laws. Once we remain within these borders (Constitution; laws; distance from danger) we should live safe, fruitful lives. But, if we leave the house without permission or reason; if we defy the walls, gardens and fences set up to protect us, we’ll be in danger. Bad outcomes are likely.

I’m repeating these concepts because Jamaica now has a third term Government. Save in exceptional cases (e.g. a second PNP term transformed Jamaica from colonialism to independence) it’s a third term that allows Governments to create lasting legacy. Some current Government members may be confusing solid incremental achievement, of which there are many, into legacy. Nope. That’s Government as usual. That’s politics 101.

Legacy is sustainable transformation.

Legacy doesn’t do the same thing the same way and boast about statistical improvements. Legacy reconstructs society so Government and governed move together towards national goals. Legacy is the creation of institutions to transform people’s lives. Legacy isn’t “no new taxes”. Legacy isn’t “murders are down”.

So Norman Manley collaborated with Bustamante to produce a legacy of independence. Edward Seaga and Michael Manley collaborated to produce a legacy called National Housing Trust. After Manley left, collaboration to build legacies has been missing in action presumed dead! Political one-upmanship became the order of the day. Today, Andrew Holness’s third term gives him the opportunity to create a new legacy. Politics shouldn’t matter to Government in its third term. Been there; done that. The time has come to be remembered as a Government that transformed Jamaica. The alternative is to risk Government’s incremental gains being frittered away by successor administrations because you wasted your third term only building on those increments instead of building a nation.

There was an old man named Michael Finnegan.

He grew whiskers on his chinnegan.

Shaved them off but they grew in again.

Poor old Michael Finnegan, begin again!

So the mission of this third term must be real, fundamental Constitutional Reform. Government must scrap the politicized nonsense that, to date, masqueraded as a constitutional reform process. Begin again.

The reality is politicization of this crucial nation building process must be blamed on Government. It was Government that selected a Constitutional Reform Committee (CRC) in secret and included FIVE legislators (and the Attorney-General) whose conflict of interest and duty was obvious. Then it held secret meetings before a speck of public education was attempted. Then, after public pressure, it held a few perfunctory town halls during which CRC Chair explained what Government planned to do.

Holy subterfuge Batman!

PNP’s error was to stay involved too long. As soon as Government’s intention of reform without change became clear, it should’ve withdrawn. Its belated withdrawal made PNP appear disingenuous and obstructionist.

I’m repeating the song Michael Finnegan, which I’ve used before, because it’s sublime suitability to today’s theme commands replay. It’s an ancient Irish nursery rhyme, with endless verses, about a man whose misfortunes lead him to cyclical new beginnings. The song featured in the 1984 HBO movie Finnegan Begin Again, starring Robert Preston and Mary Tyler Moore, about an immigrant’s journey.

So Jamaica must begin again on the “Road to Republic”. This time, a new CRC should be chaired by a retired Judge or Senior Counsel with Constitutional Law expertise like Hugh Small whose wide experience, high intellect and (most importantly) independence of thought provides the best available Résumé. The Chairperson should get two personal picks; JLP/PNP two picks each (excluding legislators); and civil society groups, including the Church, should be asked to select a representative. Legal advice, if needed, can come from Attorney-General’s Chambers.

The process should begin with the “new” Justice Ministry and the Education Ministry conducting island wide education using this column’s first three paragraphs as a primer. Jamaicans must UNDERSTAND what a Constitution is and what the current one contains. Then comprehensive citizen consultation should follow so a new Constitution developed for we the people is written in language we can understand. This is how to ensure the consequential referendum results in approval of ballot proposals.

The first step is PNP/JLP co-operation on patching this absurd pothole on the “road to republic” namely abolition of the Privy Council (PC) as Jamaica’s Apex Court. The compromise solution is so obvious that only political chicanery could be an excuse not to get the show on the road.

We must begin with an understanding of what exists and why. There’s plenty nonsense broadcast about PC’s constitutional position. I was shocked to hear Emily Shields assert on election night that PC is entrenched in our Constitution. Maybe she was tired (it was late) or maybe she was using a poorly constructed metaphor. Either way, thanks to Dionne Jackson-Miller for her gentle but immediate correction.

PC is NOT entrenched in the Constitution. Apart from the constitutional incongruity such a parliamentary perversion would create this was done specifically so it could be abolished anytime. Norman Manley expressly allowed the British this “win” because he knew it could be reversed by a simple parliamentary majority vote in a Jamaican Parliament.

More good news: On August 28, responding to Dionne’s pointed query, PM finally disclosed his personal preference for Jamaica’s Apex Court. He said he favoured a Jamaican final court. I agree. But JLP so enjoys doing things in phases (1.5 tax threshold; 15% tax rate; constitutional reform) why can’t we IMMEDIATELY implement Phase One towards that aspiration?

Jamaica can IMMEDIATELY abolish appeals to PC and replace it with CCJ as a transitional court with identical constitutional status as PC. Or Phase One can stop at removing PC. The current Court of Appeal would be temporarily final, as it currently is for 98% of litigants. Phase Two would then involve JLP’s pretend referendum to decide on one of three alternatives; Jamaican Final Court; CCJ (transitional); or no third tier.

PM’s August 28 disclosure exposed JLP’s bizarre game. JLP knows, or ought to know, if, with PC still around, before education in civics and the constitution is complete, we “consult the people” by referendum that colonial relic would win by a gap. So either the stated preference for a Jamaican Apex or desire for a “grand referendum” seems insincere. What’s JLP’s real wish for Jamaica’s transformation? What does JLP want its legacy to be?

On some things leaders are elected to lead. We didn’t “consult the people” by referendum to become Independent from England’s politics. Why should we “consult the people” to become independent from England’s court?

More good news: Jamaica doesn’t have to obey PC’s nonsensical decision telling us we must entrench a foreign court in a Jamaican Constitution in order to replace PC with CCJ. That was self-serving rubbish meant to keep PC in charge until we can establish a local Apex Court because NO FOREIGN COURT should be entrenched in a nation’s Constitution. Once PC appeals are abolished judgments delivered by that colonial remnant will no longer be binding on Jamaican courts or Jamaican Parliaments.

So PC can be abolished anytime. Immediately CCJ can be adopted as an interim Apex Court without having to constitutionally entrench it. When we are ready and willing we can establish a Jamaican Apex. That’s obviously the appropriate compromise to the two political parties’ stubborn refusal to choose Jamaican independence over political partisanship. PM’s August 28 revelation means he’s expressly in favour of abolishing PC appeals.

So abolish them! Next steps will be up to a collaborative effort but establishing CCJ as a temporary Apex (as was PC) seems elementary. Then we can step proudly onto the “Road to Republic”.

Peace and Love.

Gordon Robinson is an attorney-at-law. Send feedback to columns@gleanerjm.com