JAMAICA | Be Loyal to the Rule of Law, Nicholson tells A.G. Dr. Derrick McKoy

KINGSTON, Jamaica, March 6, 2022 -  During a Harvard Law School lecture last April, Justice Stephen G. Breyer of the US Supreme Court made clear that he viewed the judiciary as divorced from politics. Once a judge takes an oath, he declared, "(T)hey are loyal to the rule of law, not to the political party that helped to secure their appointment."

Dr Derrick McKoy, former Dean of the Faculty of Law at the University of the West Indies at Mona, would agree that the principle applies to the position of attorney general in equal measure, and that it should constitute a compulsory guideline in Jamaica's approach to the process of constitutional reform.  Dr McKoy was recently appointed by Prime Minister Andrew Holness to the position of attorney general, and in accordance with what the principle entails, it is appropriate for there to be respectful expectation of him being loyal to the rule of law exclusively.

Close attention will no doubt be paid by the public, and certainly by his former students, to what the former Dean of the Law Faculty at the regional university will bring to the table touching upon the requirement of loyal acceptance of the role and the rule of law.

Like Dr McKoy, Dr Kenny Anthony was a lecturer at the regional university, at the Cave Hill campus. Let us examine the example that Dr Anthony, later in the political arena as leader of the St Lucia Labour Party and prime minister, has left for history and his former students to contemplate.

He and his party wished to be certain that St Lucia would proceed along the correct constitutional track to delink from the Privy Council to subscribe to the Caribbean Court of Justice (CCJ). They sought "what can be described as an advisory opinion because St Lucia has a law which allows the Government to refer constitutional questions to the Court of Appeal to get a determination" - an effective example of the role of law.

The Appeal Court advised that the correct path was by a stipulated vote in the Parliament. Although the declaration that emanated from the Court was of an advisory nature, in respectful obedience to the rule of law, there has been no report that the St Lucia Labour Party, or any other political party, has insisted on the adoption of any other route.

Regrettably, that has not been the experience in Jamaica. Some two decades ago, some petitioners including the Jamaica Labour Party, sought the ruling of the court as to whether the People's National Party Government, in pursuit of the same goal for Jamaica, had proceeded along the correct constitutional channel.

The Privy Council ruled that the Government had employed an inappropriate procedure, and that the correct route was by means of a stipulated discrete vote in Parliament. In blatant disregard of the rule of law,  the JLP proceeded to demand that a referendum be held instead of the ruling which they had sought from the court.

Dr McKoy would certainly not approve. Moreover, the route insisted on by the JLP is a path that has never been turned to by any of the two score and more former British colonies that have delinked from the British Court to subscribe to a final appeal court within their own sphere.

In only three countries have there existed  constitutional provisions for that exercise to be embarked on by means of a referendum. And in those countries, strangely all within the region, the required referendum route has been attempted and, not surprisingly, without any semblance of a positive outcome.

All countries that have completed the exercise have done so by a vote in parliament. And that was the advice given to St Lucia by their Appeal Court, and to Jamaica by the Privy Council. Surely, the former Dean of the Law Faculty could never subscribe to that unprecedented position taken by the JLP.

Dr McKoy will have to contend with the JLP's declaration that pure justice comes from the Privy Council. Incredibly, they have even been prepared to commit a flagrant violation of the Constitution by unlawfully manipulating the provision regarding membership of the Senate in order to block a vote that would defy their position.

The danger of the irreparable damage to the judicial arm of government that could flow from crossing that Rubicon over into a thorny referendum field was publicly pointed out over six years ago by the Jamaican Bar Association.

And, as the history right here on our doorstep has shown, this exercise should be kept far away from a referendum whether as a single question or "going together with" any other issue, for example, of moving away from the monarchy, as Holness has suggested. It is a path which all before us who have completed the exercise have feared to tread.

The assertion that pure justice comes from the British Court clearly points to a deeply-held lack of confidence in the acumen and integrity of persons from among us to render fair, impartial and efficient justice to their brothers and sisters. That certainly could not sit well with Dr McKoy whose experience wiith the immense talent that exists within the region would lead him to an informed conclusion.

The duty has now fallen to him to steer the government and, in particular, the newly created ministry of legal and constitutional affairs onto the correct path, guided by Justice Breyer's time-honoured reminder and the principled example led by Dr Anthony.

Two issues remain at the top of the agenda for Jamaica to complete the circle of independence: delinking from the scarsely used Privy Council; and moving away from the monarchy to become a republic. Concerning this latter, there is the constitutional requirement of a referendum being held. And, when that event comes to take place, it would be entirely appropriate that history should record a respectable turnout of voters.

Strong calls have been made for the former issue to be finally disposed of during this 60th anniversary year of Jamaicans attaining the right to govern themselves. If the unexpected were to happen, with a positive response made to those calls, the antecedents of the recently-appointed attorney general would be of immense assistance.

Foundational ties exist between the creation of a regional university and a regional final court of appeal. Coming out of a meeting of British Governors of the West Indian colonial territories at Bridgetown, in 1947, there were three recommendations, namely, that there should be: a regional university; freedom of movement among the territories; and a final court of appeal.

Her Majesty Queen Elizabeth II, the University Visitor, at the official opening of the Norman Manley Law School on the Mona campus in 1975, sent forward the pronounced message of the "creation of a West Indian system of legal education" anchored on "the common law of England".

The profession had by then come to be irreversibly rooted in a regional perspective with legal education to be based within the regional university precisely to assist in cementing the foundation on which the judicial and legal superstructure would, in time, be firmly erected. 

The CCJ President, Justice Adrian Saunders, and several others are shining examples of the standard that was meant to be attained under that arrangement. The Court which, during its creation, had most unjustly been projected by some to be a 'hanging court', has recently been inducted into the International Consortium for Court Excellence.

Resistance to the dictates of the role and the rule of law has left Jamaica lingering at this juncture along the road which must be taken in the best interests of its citizens, the majority of whom have never found themselves in any position to afford what is required to begin to seek justice from their court of last resort. 

And even so, the question endures: Is there any indication that this highly desirable developmental goal is any part of the agenda of this Administration?

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