JAMAICA | Govt's Eerie Silence on a Final Appeal Court Breeds Frustration

JAMAICA | Govt's Eerie Silence on a Final Appeal Court Breeds Frustration

 KINGSTON,  July 17, 2022 - The government should be especially mindful of the danger of an irretrievable lack of trust in their constitutional reform agenda by putting forward an embryonic plan with the peculiar proposal for a 'review' of the new and improved Charter of Fundamental Rights and Freedoms, coupled with a conspicuous omission of any reference whatsoever to regularising the longstanding intolerable situation regarding our final appeal court.

 Former Foreign Minister, Justice Minister and Attorney General, A.J. Nicholson. Former Foreign Minister, Justice Minister and Attorney General, A.J. Nicholson. With the government sending such a signal, ominously projecting an oblique motive after the prime minister's announcement of moving on from the monarchy, it is more appropriate by far that in this sixtieth anniversary year, both government and opposition first engage in a proper analysis of the reform road already travelled, fully recognising the utter frustration of the public in the awkward route being taken toward full sovereignty.

 For, while there may be cautious acceptance of an unusual costly creation of a separate ministry in moving along that journey, the public is entiled to be told truthfully why deep suspicion should not flow from the contrived skirting of the one outstanding initiative on the reform programme which guarantees overdue appreciable benefit finally moving to our less privileged citizens.

 The government could not expect that it would escape the attention of Jamaica's havenots class that, despite extensive prodding from several quarters, the leadership has long maintained this eerie silence concerning that obligatory stepping stone toward full independence.

 On all sides, there would be awareness that the crusade for the attainment of that initiative rests on two main planks: denial of access to several generations of wouldbe petitioners; and the contribution that an apex court makes to defining the character of a democratic society.

 And that crusade reminds of the Privy Council's indelible connection to cementing the cruelly unjust arrangement of minority haves and majority havenots that defines our Jamaican society.

 Established at the abolition of slavery as the legal advisory body to the sovereign whose family members had been deeply involved in that greatest of human atrocities, the institution would have contributed to the indefensible policy of outlandish 'compensation' awarded to newly 'deprived' slave owners and the signature emptiness afforded the 'emancipated' forbears of the majority of our people

 Since that is where our judicial moorings still rest, why should the public not interpret the government's contrived silence as a determination to block Jamaica's embrace of the accessible, internationally acclaimed final court fashioned by our own ingenuity within the region, and part-financed by our own tax dollars?

The officials in the new ministry would recall that some two decades ago, after legislation was approved toward that initiative, the Jamaica Labour Party (JLP), joining with others, petitioned the Privy Council asking whether the proper procedure had been adopted. 

 The final court advised that the correct process which should have been employed was for both political parties to join together to pass the bills in each House of Parliament.

 Edward Seaga, then leader of the JLP, declared that their position was for a referendum to be held. The People's National Party objected, pointing to the unprecedented nature of such a departure which runs counter to Jamaica's constitutional arrangements, and the irreparable damage to which our judicial system could be exposed in such a political referendum campaign.

 With rejection of that dangerous referendum proposal, the Privy Council's directive remained;  Seaga, on behalf of the JLP without restraint, pronounced that it was their way or the highway.

 A desirable focus of the new ministry of legal and constitutional affairs ought to be trained on effecting an atonement for that stunningly orchestrated scheme against the Senate membership constitutional rules, demanding that prospective senators betray their oaths, leaving Jamaica's legal history with an eternal stain resulting from the abominable transgression of compelling descendants of slaves to continue clinging to the imperial legacy

The officials of the new ministry would be well served by the timely reminder that Victor Grant, the first attorney-general in independence, would have advised the groundbreaking Hugh Shearer-led cabinet that, patriation of our judicial moorings would ideally entail the creation of a Jamaican final court, but that, with our limited challenged economy, meeting required global standards to fulfil such a mission would be out of reach.

 Notwithstanding, he convinced the cabinet that the contribution of the judiciary branch to the development of any democratic society is largely piloted by the highest court of justice, and that a regional court served by judges armed with knowledge of this Caribbean cultural existence within which we live, breathe and have our being would be superior to the British court.

 That clear-sighted visionary viewpoint of the pioneering attorney-general should now inform the framework of the planning and forward push on this issue within the newly created ministry. 

 There should be no blind belief that this sage thinking concerning accessibility and the contribution of an apex court to the direction and character of a nation is trumpeted only by crusaders within Jamaica and the region. Those sentiments have long been publicly expressed by judges of the Privy Council, oftimes in not so diplomatic terms.

 For example, Lord Leonard Hoffmann, then a serving judge of that court, minced no words in speaking directly to the issue of remoteness of the Privy Council, addressing the Trinidad and Tobago Law Association on October 10, 2003:

 'It is an extraordinary fact that for nearly nine years I have been a member of the final court of appeal for the independent Republic of Trinidad and Tobago, a confident democracy with its own culture and national values, and this is the first time that I am setting foot upon the islands. No one unaware of the historic links between the islands and the United Kingdon would believe it possible'.

 And he strongly advised his hosts that 'a court of your own is necessary if you are going to have the full benefit of what a final court can do to transform society in partnership with the other two branches of government'.

Searching questions therefore remain: What is it that drives the JLP leadership, following their late former leader, to nourish the privilege of the powerful haves class by setting their collective face against Jamaicans embracing the affordable, accessible regional court? Is that not directly in step with what was heartlessly dished out to our ‘emancipated' havenots ancestors?

 The response boils down to two main issues remaining on the agenda for achieving full sovereignty: delinking from the Privy Council; and moving away from the monarchy. For both to be attained, our constitutional arrangements require collaboration between both political parties.

 To achieve republican status, the constitution provides for a referendum which demands painstaking planning for an acceptable, successful outcome. The government has announced that the referendum is to take place before the next general election which is due within three years.

 All that is required for delinking from the Privy Council and accepting the jurisdiction of the Caribbean Court of Justice is the tabling of the already drafted enabling bills in the House of Representatives for legislative approval in both Houses within a period of months as stipulated by the Constitution.

The wisdom of delinking from the Judicial Committee was exposed for public attention by a Gleaner editorial over 120 years ago, in 1901. Reprehensibly, for Jamaica's vast army of deprived havenots, this sepulchral silence is a depressing signal that the prospect remains nothing but an elusive dream, and the evidence is that this obdurate JLP government doesn't really care. Frustration indeed!

AJ NICHOLSON

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