JAMAICA | Emancipate your thinking Minister Chuck, Says A. J. Nicholson

KINGSTON,  Jamaica,  August 14, 2022 - On Monday August 1, as Jamaica marked the Emancipation event, The Gleaner reported that, when an enquiry was made of justice minister Delroy Chuck as to his solution to the intolerable dilemma that has long plagued the apex of our judicial system, his reply, in essence, was that his position has always been that there should be a Jamaican final court of appeal.

Of course, thinking people would no doubt agree that that is an ideal position to be taken by citizens of a proud, politically-independent nation. But their thinking, unlike Chuck's dated, myopic offering, would of necessity push them into deeper contemplation on the issues involved.

In the first place, it would be immediately recognised that a country's final appeal court is required, without compromise, to attain to international standards, and that the state of the Jamaican economy, at present and for the forseeable future, does not unfortunately offer itself as the kind of foundation stone on which such a prospect may be reliably anchored.

Then, it would dawn on thinking people that the root cause of the 'final court dilemma' is that only a very tiny fraction of our people have been privileged over the years to be positioned to enjoy affordable access to Jamaica's court of last resort in the United Kingdom, and that no more than a mere three or so petitions are heard annually.

In any democratic society, for several reasons, that is an extremely important issue of governance which cannot be ignored or neglected by a responsible government. An acceptable solution therefore had to be found and the required preparation made for the forever deprived vast less privileged majority of our people to be granted the long overdue benefit of access to their court.

Thinking people publicly placed Jamaica's well thought through solution squarely on the table over a half century ago, in 1970.

Urged on by the sound reasoning of the Organisation of Commonwealth Caribbean Bar Associations, the then Hugh Shearer-led government, at a Conference of Regional Heads of Government here in Kingston, indicated to the world that Jamaica's policy position was for an embrace of the jurisdiction of a regional final appeal court when it should come to be established.

Up until a recent unexplained complete turn in the stance of the leadership of the Jamaica Labour Party, that vision-filled policy position endured throughout all the years.  >The deliberations of that Joint Select Committee had been deeply influenced by the findings of an earlier Constitution Commission under the chairmanship of the Honourable James Kerr, and later, Dr Lloyd Barnett.

And so, we eventually came to witness the creation of the regional Caribbean Court of Justice (CCJ). It has been financed in part by the Jamaican taxpayer, and it soon came to earn international acclaim. Its judges, fully attuned to the cultural space which sustains us, will, by Treaty urgings, come to sit right here on Jamaican soil to hear our petitions.

Unurprisingly, the evidence shows that, since the inauguration of the final regional Court in 2005, the number of petitions from the countries that have acceded to its appellate jurisdiction has increased exponentially over and above when those countries were attached to the Privy Council. 

And, have justice minister Chuck and the leadership of the Jamaica Labour Party not been advised that the judgments from that Court have been receiving rave reviews and glowing commendations within the region and globally?

What Chuck's stated position impactfully amounts to, is that, until that glorious day when the Jamaican economy is flourishing to the extent that our justice ministers no longer lament their ministry's "poor cousin" annual budgetary allocation, and the economy, in full bloom, can confidently sustain a globally acclaimed final appeal court, our less privileged challenged citizens, like generations before them, are to remain condemned to continue clinging to the inaccessible, unaffordable British Court.

Thinking people would demand that Chuck and the Government explain to all Jamaicans, at home and in the diaspora, the reasoning behind the recent unrelenting heartlessnes which has driven them to erect this stumbling block, preventing our people from enjoying access to the regional Court. 

They would also demand that the leadership give an explanation, and make an earnest plea for forgiveness, for allowing that misguided, indefensible stance to lead them to the point of conspiring to defile the legislative branch of government by the corrupt use of the Senate membership provisions of the Constitution with the demand that wouldbe senators betray their solemn oaths.

Chuck, himself, was moved to publicly denounce that abominable transgression.

Their stance is further complicated by the fact of the prime minister's recent declaration of Jamaica moving on to republican status. Surely, they could not contemplate our country delinking from the monarchy while remaining reliant on the monarch's legal advisory body as our court of last resort. 

Over time, the settled orthodoxy, with  extremely few quaint exceptions, has been that the erstwhile colony delink from the imperial Court either before or at the same time as abandoning the monarchy.

In our case here in Jamaica, there is the constitutional requirement for a referendum to be held for moving on from the monarchy.

And, since matters relating to the judicial system should best be kept far away from any political referendum exercise, thinking people would strongly suggest following the route of delinking from the Privy Council as a precursor to embarking on the referendum question. 

Chuck's superficial, personalised answer to this question of immense importance to the machinery of one of our three branches of government is a clear indication of the low priority space that the matter occupies on the agenda of the present administration. 

His comment happens to be the first to have proceeded from any member of the government concerning this burning issue in over three years, even in the face of public urgings.

Issues relating to the death penalty in Jamaica and the Caribbean, and the unease in the United States that swirls around abortion rights issues are unmistakable examples of how the powerful influence of the rulings of a country's highest court helps to shape the direction and character of the society. 

In a democracy, the apex court is a prime source of the contribution that is made to governance by the judiciary branch of government. When the time comes that the provisions of the new and improved Charter of Fundamental Rights and Freedoms fall to be interpreted and adjudicated upon by the judges of the CCJ, Jamaica can then be said to have crossed the bridge over into the second step toward full sovereignty, with delinking from the monarchy, the third and final step, to follow.

These considerations have sadly escaped the attention of Chuck and the government, or have been shelved by them, having for whatever reason determined to look the other way. 

And, does their oath not oblige them to shun personal preferences and to take decisions that are in the best interests, particularly, of the less privileged among us? Is their stance not simply massaging the power of the privileged, a privilege that was cemented at Emancipation?

Emancipate your thinking, Minister Chuck! Table the CCJ bills! Long past urgent!

A. J. Nicholson