Published: Sunday, October 18, 2009
Source: Jamaica Gleaner
In effect, the result of the judgement is that this substitution cannot take place unless there is parliamentary support to the extent of a two thirds favourable vote in each Chamber. In practice, this means that there has to be co-operation between the two major political parties.
I would suggest that the prime minister begin his consideration by consulting with the Speaker of the House of Representatives, Delroy Chuck and the president of the Senate, Senator Oswald Harding. I mention this starting point for the reasons set out below.
In 1988 Senator Harding, who was then attorney general , brought to the Cabinet , and obtained its approval for, a proposal to abolish appeals to the Privy Council and substitute as our final appellate body a regional court which we now know as the Caribbean Court of Justice. This proposal also had the support of the People's National Party which was then the Opposition in Parliament. In 1989 there was a general election which returned the People's National Party as the majority and hence that party became the Government and the Jamaica Labour Party became the Opposition. When the Government of Jamaica subsequently signed a treaty with its CARICOM partners establishing the CCJ with both an original and an appellate jurisdiction and introduced legislation to constitute the appellate division as our final Court of Appeal in place of the Privy Council, the JLP then announced that they would not support this legislation but would oppose it, both in Parliament and, if necessary, in the courts.
The stated ground of their objection was their contention that there should be an 'indicative referendum' beforehand to determine whether the Jamaican people wished the substitution to take place. The People's National Party government objected to this proposal on the ground that the result of such a referendum would not be binding, and would constitute an unnecessary and unwarranted expenditure, since it would cost the Government almost as much as a general election if it were to be properly conducted.
Instead, the Government suggested to the Opposition that the proper course would be to pass the legislation in Parliament, so that the CCJ would then become included in the Constitution. It would then be entrenched by amending Section 49 of the Constitution so as to make Section 110 one of the entrenched sections. Since Section 49 is a deeply entrenched Section, this amendment would require the legislation, after it had been passed by Parliament, to be submitted to the electorate in a referendum for approval before it could become law.
The avowed interest of the Opposition in seeing that there was majority approval of the electorate before this change could take place would be satisfied in a conclusive and binding way. This proposal by the Government, however, was not accepted by the Opposition and the events culminating in the above-mentioned ruling of the Privy Council ensued.
In an attempt to break the resulting stalemate the then Attorney General, Senator A.J. Nicholson, arranged a series of meetings between himself and his team with the relevant Opposition spokespersons Delroy Chuck and Senator Dorothy Lightbourne. These meetings resulted in an agreement, with Chuck at any rate, on a procedure which would satisfy the requirements of the Privy Council decision, the interests of the Opposition Labour Party in obtaining the approval of the general electorate prior to the changeover coming into effect, and the desire of the Government to have this change effected in the national interest and in accordance with the provisions of the Treaty, into which Jamaica had entered with its CARICOM partners, and which, in fact, imposed a financial obligation on Jamaica, since the CCJ in its original jurisdiction is fully in existence and is being paid for by all the CARICOM countries including Jamaica.
Notwithstanding the foregoing, the Jamaica Labour Party after winning the general election in 2007, has taken no step to implement the agreement which appeared to have been reached during the meetings with Chuck referred to above.
No ideological difference
It is apparent from the history of this matter that there is no philosophical or ideological difference between the two parties with respect to the desirability of taking the final step to achieving our complete independence from the erstwhile colonial power by removing our final Court of Appeal from its location in London to the Caribbean. It may be noted in passing that the CCJ, though headquartered in Trinidad, will, in the exercise of its appellate jurisdiction, sit in Jamaica to hear appeals from the Jamaican Court of Appeal.
There can also be no doubt that the Caribbean region is perfectly capable of producing jurists of the same calibre of competence and integrity as admittedly exists with the Privy Council, but with the inestimable benefit of having our own laws and our own Constitution interpreted and applied by a judiciary chosen by a process that we have fashioned for ourselves and which guarantees the independence of the judges collectively and individually from any form of political manipulation.
Multitude of difficulties
Finally, added urgency has been given to resolving this issue by the reforms that are taking place in the judicial system in the United Kingdom, which is bound to have an effect on the way in which persons are selected to be members of the panels that constitute the Judicial Committee of the Privy Council and the obvious desire expressed by Lord Phillips to release English appellate judges from the burden of having to deal with cases that have nothing to do with the people of their own country.
Notwithstanding the multitude of difficulties that we all realise the prime minister and his Government face at this time, I would urge him and his colleagues to recognise the importance of rationalising our judicial system and completing the process of our independence.
We will, in the not too distant future, I trust, be bringing our own Constitution, as a whole, up to date. It is vital that, when this process takes place, the validity of what we do will be determined by a final court of our own region and not by one that is a relic of our colonial heritage.
David H. Coore, an attorney-at-law, is a life member of the People's National Party (PNP)