JAMAICA | Holness' Dilemma: Access and Atonement

Since Edward Seaga's passing, meaningful efforts, including by the news media time and again, to goad Andrew Holness into addressing the structural issues that present challenges and confusion at the apex of Jamaica's judicial system have been met with a tomblike silence.

Why was nothing even whispered publicly by the prime minister and his colleagues - at post cabinet briefings, in parliament, at the PM's press conferences, or from wherever - concerning the initiative for Jamaica to leave the Privy Council and embrace the Caribbean Court of Justice (CCJ)?.......The reason for that strange retreat into silence had to 'come to bump' !

There has been the announcement, sent straight to Buckingham Palace, of 'moving on' from the monarchy. But, during this 60th anniversary year of Jamaica's political independence, there is this deliberate silence, ignoring issues that have long beset the highest reaches of the judiciary branch of government.

There can be no further skirting of the root cause; it is past time to face the full, unvarnished truth: Holness and his colleagues are caught on the horns of a thorny dilemma, quaking in their boots. The challenge is, how to disentangle themselves.

Their dilemma has two limbs: first, the shockingly vehement opposition to the endeavour erected by Seaga in leading the Jamaica Labour Party (JLP), placing a roadblock to further depress the fortunes of the eternally deprived majority of our citizens, and inherited by his protege.

What unceasingly troubles Mr Holness is: How to reverse a path, cemented in the party by his mentor, and which has been distinctly proven to be unprecedentedly dangerous and wrong, unjustly depriving our people of affordable, unhindered access to our final court of appeal.

The second limb was conceived when Holness became opposition leader after briefly heading the government upon Bruce Golding's resignation. The opposition to the initiative was so uncompromising that the party leadership engineered an alarming assault on our independence constitution by a secret plot, stealthily designed to derail a legitimate Senate vote on the issue.

The judgment of then Court of Appeal president, Mr Justice Panton, in the Holness v (Arthur) Williams appeal, pointed to the danger that the outrageous attempt held for the practice of parliamentary democracy. The Appeal Court affirmed the Order of the Constitutional Court, that:

"...(T)he request for and pronouncement of presigned and undated letters of resignation and authorisation (by the Leader of the Opposition) and the manner of their use to effect the resignation of Senators (the claimant in particular) are inconsistent with the Constitution, contrary to public policy and are, accordingly null and void".

When the Constitutional Court declared the unlawfulness, Holness claimed to issue an apology which disappeared when he soon launched an appeal against the decision. President Panton's judgment amounted to a rebuke of the leadership of the party that alternates as the government:

"The Senate is a very important part of the machinery of government....", he reminded. "The Constitution makes it so... (E)ach Senator is expected to give conscientious thought to every topic that comes before the Senate for discussion and vote.

"Every Senator takes an oath to be faithful and bear true allegiance to Jamaica, to uphold and defend the laws and the Constitution of Jamaica. (Their) responsibilities are to the people of Jamaica, not to a club, group or section of Jamaica. In view of that oath, it would be against the spirit of the Constitution if one were to bind one's conscience elsewhere".

The nature of the assault on that provision in our constitutional arrangements would unquestionably have been conceptualised by someone with more than passing acquaintance with the development of our principal legal document. That outrage has left an indelible stain on the landscape of our legal and parliamentary history, requiring atonement.

Tabling the bills in the name of 'Andrew Holness, Prime Minister' would send two powerful signals: a process of atonement from Holness and the JLP for that stunning strike against our constitutional order; and secondly, uprooting the depressing positions buried in the party, blocking the deprived majority of our citizens from access to justice.

Holness needs to get over the trepidation of appearing within the JLP to be 'disloyal' to the former leader. But, the demand that was made and the language employed by Seaga in settling that fierce opposition to the initiative have left his protege with a legacy that is perhaps mentally difficult for him to unravel; hence the ghostly silence of the entire leadership.

A political demand for the holding of a referendum was made - unprecedented everywhere within the Commonwealth. And, probably considering it to be a display of loyalty to his mentor, Holness ill-advisedly proposed an expansion into 'a grand referendum', to include questions about Jamaica becoming a republic and the buggery law.

Seaga stridently proclaimed that 'pure justice comes from the Privy Council', therefore the JLP would not support Jamaica acceeding to the CCJ, even after significant financial contribution had been made to its creation and still annually to its functioning and upkeep. .

In 2015, after the judges had, for ten years, displayed their prowess in acknowledged satisfaction of international standards, the PNP-led government moved again on the initiative. Retired from active politics and having entered the regional education fraternity, the former prime minister, in the most infelicitous terms, accused the government of 'a sinister attempt... to unleash upon an unsuspecting people a lesser breed of justice'.

Some people maintain that Bruce Golding, unencumbered by the 'Dudus' Coke predicament, would have guided the JLP out of the unwarranted reform thicket into which the party and Jamaica had been dragged by the perilous demand and caustic declarations of the former leader.

They say so, based on the signal that he sent when, leading the debate in Gordon House on the Charter of Rights Bill, he laid stress on the near impossibility of anything positive attending the referendum route, moreso, absent bi-partisan agreement. They also doubt that he would have tolerated the indignity, and more, of having to obtain a visa for gaining access to justice

Fate has placed the cup into Holness' hands. No former head of government has inherited such an acid test: a protege torn between loyalty to his former leader and mentor and obedience to his sworn responsibility to the Jamaican people.

The solution for the head of government is to heed President Panton's time-honoured admonition that, the responsibilities of legislators are to the Jamaican people, not to a mentor or former leader, for example. And the oath that is taken to uphold the laws and the Constitution binds their conscience accordingly.

That is the wholesome path open to Holness and his colleagues; not that they are less loyal to his mentor and their former leader, but that their oath obliges that their responsibility to pursue the best interests of the people of Jamaica is paramount.

The PNP Youth Organisation has urged: Table the long-drafted bills. They perceive an unfair imbalance in the society, and their petition is for the servants of the people to allow their employers, with a thoughtful and caring gift for this 60th anniversary of our political independence, to taste of this privilege, long denied to them for generations.

Atonement and reverence for the 'moving on' pathway require Mr Holness to speak up and unburden himself. His employers would say, thanks, but let us see!

AJ NICHOLSON

The author, Arnold J. Nicholson is a former lecturer in law, a former Minister of Justice; A former Attorney General and a former Minister of Foreign Affairs and Foreign Trade of Jamaica.