October 04, 2007

Marshall Burnett Commentaries: 2

Unity needed on key issues
Source: Jamaica Gleaner
published: Wednesday February 1, 2006
Anthony Gifford, Contributor

ONE YEAR has passed since the historic decision in the case of Independent Jamaica Council for Human Rights vs Syringa Marshall-Burnett. The Privy Council struck down the Bills which the Government had promoted in order to secure Jamaica's participation in the Caribbean Court of Justice (CCJ). The judges ruled that for Jamaica to install a new final appellate court, the court should be entrenched in the Constitution in the same way as the existing courts are entrenched. Entrenching the CCJ would ensure that a future government which disliked its decisions could not withdraw from it without opposition agreement.


Since then there has been no move towards the bi-partisan agreement which is needed. Both sides agree in principle that Jamaica should join the CCJ, but cooperation seems to be an alien concept to our political leaders. It is the same with the Charter of Fundamental Rights, on which both sides agreed many years ago. It is the same with the declaration of Jamaica as a Republic in place of having the Queen as head of state.

All these issues have a common theme: the assertion of Jamaica's sovereignty and independence. The retention of the Queen as head of state may be merely symbolic, but what it symbolises is a colonial link which should be utterly rejected. The existing chapter in the Constitution on fundamental rights is written in legalistic language derived from Europe. Its provisions are inadequate and it has serious flaws. A Jamaican Constitutional Commission took soundings from the public and presented an agreed draft 10 years ago. It has lain on the shelf because the political leaders could not find common ground. So Jamaicans are left without the benefit of a home-grown, comprehensive and readable Charter of Rights.
The same paralysis prevents any movement on the CCJ, which is now up and running without us. There is a reluctance, shared by many attorneys, to commit ourselves to a Caribbean court while our local justice system is under so much pressure. Many argue that at least Jamaica enjoys a first-class final appeal court, even if it is provided by courtesy of the former colonial ruler. Like Hamlet we stand on the brink, preferring to 'bear those ills we have than fly to others that we know not of.'

Those who shrink from change point to the excellence of the Privy Council. I have pleaded several cases there in the last few years and I can confirm that the judges are erudite, well prepared and keen to promote fundamental human rights. If you can afford to get there (and the costs are huge), the Privy Council will give you a fair hearing.


That does not mean that impartial and learned decisions can only be made by British judges. We are in danger of assuming a mindset of subservience, forgetting that the Caribbean has also produced great jurists. The region has shown excellence in academic, medical and other professional areas. I believe that it can fashion an appellate court which will show equal excellence in the delivery of justice. The court will also be far more accessible to our people and our attorneys.

The new leaders now emerging in both parties have a duty to put national interests first; to stop playing politics with constitutional change; and to realise that the basic consensus which exists on these issues needs to be translated into a platform of agreed reforms.

Anthony Gifford is an attorney-at-law in Jamaica

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