JAMAICA | Holness'Other Dilemma....The Unjust Breakaway !

KINGSTON,Jamaica, May 8, 2022 - Andrew Holness, looking at the man in the mirror, will contemplate that every prime minister, from Shearer in 1970 to Simpson Miller in 2015, fully supported the game-changing initiative for Jamaica to leave the Privy Council to subscribe to a final appeal court for the Commonwealth Caribbean countries.

Edward Seaga, several years after leaving Jamaica House, inexplicably broke ranks. His breakaway was, and remains, even more unfathomable considering that, as prime minister, he had brought an end to a near two-decades-long lull in Jamaica's pursuit of the initiative, by a memorable directive to his Attorney General, as we shall see.

Holness cannot sidestep this element of the 'moving on' reform journey; either he chooses to march with Shearer, Michael Manley, Patterson, Bruce Golding and Simpson Miller - along with Seaga as prime minister - or to clutch at the unjust position riveted into their party by his mentor.

The initiative was seized upon in earnest in the mid 1960s. The regional territories were gaining political independence, and that required preparing for the eventual withdrawal from the British institution, as had happened in countries that had already moved on.

Appropriately, it was a legal professional body, the Organisation of Commonwealth Caribbean Bar Associations (OCCBA), that began the fleshing-out process. By 1972, its Representative Committee Report concluded that:

"There is wide agreement that a Regional Court of Appeal should be a third tier court replacing and assuming the jurisdiction of the Judicial Committee of the Privy Council".

The Committee also recommended that:

"...an original jurisdiction be vested in the court in respect of matters referred to it by agreement between Caribbean States...in such matters as interpretation of the Agreement".

OCCBA's work had not escaped the attention of Prime Minister Hugh Shearer's administration, sending two signals: First, acknowledgment by the government that, access to the London-based court was an insurmountable challenge to the vast majority of wouldbe petitioners.

Second, the contribution that the judiciary arm of government makes toward national development flows in large measure from the rulings of the highest court. Without enough matters of differing stripes coming before that court, that arm cannot properly assist the national development agenda.

Under Prime Minister Shearer's leadership, Jamaica was the first country to have the initiative accorded official recognition. At a 1970 Regional Heads of Governnent meeting here in Kingston, a motion tabled by Jamaica to that end received approval. Edward Seaga was a member of the Shearer cabinet.

No further official pursuit of the initiative followed during the remainder of the 1970s and most of the 1980s, until July 1988 when Prime Minister Edward Seaga had the policy roadmap of the government of Jamaica officially reaffirmed.

His attorney general, Oswald Harding, was directed to attend the Regional Heads of Government meeting in Antigua and Barbuda, armed with specific instructions to register Jamaica's desire that the initiative be pursued with urgency. Bruce Golding was a member of the Seaga cabinet.

During Michael Manley's 'second coming', the high-powered West Indian Commission chaired by Sir Shridath Ramphal was established by the Regional Heads of Government in 1989. Its 1992 Report, Time for Action, contained several key recommendations, including for the establishment of a Caribbean Supreme Court vested with the twin jurisdictions earlier suggested by OCCBA.

PJ Patterson was Jamaica's long serving prime minister when the Caribbean Court of Justice (CCJ) was established. He has been our head of government who contributed more than all others to the development of the court, seeking to keep the public informed at all stages. His invaluable contribution is perhaps unsurprising, being a luminary of the legal profession.

Bruce Golding, as prime minister, did not actually state a position regarding the initiative, but we recall him being a member of the Seaga cabinet that was responsible for that 1988 defining reaffirmation moment. Some people reason that, based on his pronouncements in Gordon House, he was never comfortable with the referendum call. Andrew Holness was a member of the Golding cabinet.

Portia Simpson Miller was a member of the Patterson cabinet during the preparatory phase of the court's establishment. During her prime ministership, the bills required for legislative approval of the initiative were drafted under the supervision of the then justice minister, Mark Golding.

A debate on those bills in the parliament in 2015 was stymied by a conspiracy hatched by the Jamaica Labour Party leadership to corruptly assail the constitutional provision concerning membership of the Senate to enforce continued clinging to the imperial court whose judges have long been publicly prodding us to move on. For such a stunning, unprecedented breach, there surely is the requirement of an atonement.

Before Andrew Holness, then, every prime minister had supported the forward push for the initiative. Edward Seaga, as Opposition leader, withdrew from that consensus which he himself had dutifully helped to forge, thereby engendering an unseemly public bickering where nothing of the sort existed before. 

The OCCBA Committee Report in 1972 revealed 'wide agreement'. And that position obtained, including across the political divide, decades later in 1995 when the parliament approved a further push for the initiative as recommended by the David Coore-chaired Joint Select Committee on Consitutional and Electoral Reform, of which Seaga was a member.

Speculation exists, but there is no record as to why the former prime minister broke ranks. What, however, unmistakably eventuated was the Opposition leader guiding his party into the grossly unjust blockage of the vast majority of Jamaicans from unhindered, affordable access to a court of last resort, which the CCJ offers by its judges coming to sit and adjudicate on Jamaican soil, as was witnessed in the history-making Shanique Myrie case.

He twinned his party's withdrawal of support with a referendum call, which constitutes the ultimate blockage to any movement forward. A referendum attempt without bipartisan agreement on the question can have no positive outcome, as Prime Minister Bruce Golding had spoken to, in essence, in leading the debate on the Charter of Rights bill.

Generations of attorneys have been effectively blocked from developing their skills with the denial of the privilege of practising before their highest court, and that continues. Meanwhile, Jamaica's development process is being seriously short changed, since 2 or 3 petitions reaching the final court annually, though thankfully providing access for those few fortunate petitioners, cannot assist the country's development process, as it should.

A caring government does not, for any reason, uphold continued deprivation of the democratic right of access to justice for the citizens, their employers, or keep in place the abomination of a partisan-installed barricade which prevents an arm of government from contributing to the nation's development process.

The 'moving on' imperative beckons the prime minister to address this dilemma. Suggestion is again made for him to embrace the time-honoured advice tendered in the judgment of President Panton in the Holness v Williams appeal that, the oath sworn to by legislators directs their conscience squarely toward what is in the best interest of our people.

In unison, Prime Ministers Hugh Shearer, Michael Manley, PJ Patterson, Portia Simpson Miller and Bruce Golding, along with Edward Seaga, long before his unexplained, unhelpful turn, in accord with a steadfast focus in the post Independence leadership thrust, have settled the groundwork for the initiative to ripen into great benefit for our too long deprived people.

It is in the gift of the prime minister to have the blockage removed by responding to the urging of the PNP Youth Organisation: The 60th anniversary date is drawing nigh, Mr Holness, table the bills! 

Again, it may be that he considers himself and his cabinet to be blessed with wisdom superior to all administrations that went before them. Well, let us see!

AJ NICHOLSON.