By A.J. Nicholson, Contributor From The Jamaica Gleaner

Over the years, certain individuals within Jamaica and the wider Caribbean have asserted the need for these former British colonies to cling to the apron strings of the Mother Country by remaining wedded to the jurisdiction of the 181-year-old Judicial Committee of the Privy Council (JCPC).

I have, since the mid-1990s, followed the meandering of reasons given by persons against adopting the Caribbean Court of Justice (CCJ) as our final appeal court. I cannot, however, seem to recall any statement as preposterous as that made in an article attributed to Edward Seaga former prime minister, now chancellor of the University of Technology and a distinguished fellow at the University of the West Indies, in the Sunday Gleaner of December 21, 2014.

In attempting to answer the rejection by the Government of a call by the Parliamentary Opposition and himself for a referendum to be held for Jamaica to delink from the JCPC and to accept the full jurisdiction of the CCJ, he claims: There can be no more sinister attempt to subvert our system of justice and to subjugate the rights of the people than this attempt to unleash on an unsuspecting people a lesser breed of justice ….

Apart from anything else, a lesser breed of justice, Mr Seaga? Some would see that assertion as quite insulting; others would, perhaps, be more descriptive; all would, however, defend your right to hold and express your opinion, totally unsustainable, though, it is in all respects, as we shall see.

And why would the statement be seen as insulting? It would be said that it amounts to questioning the integrity and good faith of a vast number of persons and institutions, including the governance judgement of the authorities of certain independent states within the Caribbean.

 

High standards

First, the Preparatory Committee, which developed the Agreement Establishing the CCJ, an agreement held up by the cognoscenti across the globe as the best of its kind ever to be developed, certainly within the Commonwealth. How does that kind of industry and acknowledgment square with attempting to unleash … a lesser breed of justice?

Second, the Regional Judicial and Legal Services Commission seasoned Caribbean stalwarts who select the judges for the Bench of the CCJ, apart from the President, who is appointed upon their recommendation. Does this seem like a group of persons who would place themselves in a position to select judges to unleash … a lesser breed of justice on their unsuspecting Caribbean family?

Then, third, the judges of the court. Lets be frank! It has so often been said that the real reservation, expressed and mostly unexpressed, that is held by persons who wish for us to remain with the JCPC is their belief that our judges are not quite up to it and can be manipulated. This is regarded as a deep mistrust of, and lack of confidence in, ourselves as a people.

The foundation principles of law and jurisprudence that are taught and practised within the Commonwealth are the same everywhere for all practical purposes. Never mind that, over the years, Caribbean law students have often outshone their counterparts from other jurisdictions; never mind that the Caribbean has long produced word-class legal minds such as N.W. Manley, Telford Georges, Geoff Haynes and Hugh Wooding; that judges from the Caribbean have, from time to time, been invited to sit on the JCPC, itself. And, never mind that Caribbean jurists have been chosen to dispense justice from the highest world court, the International Court of Justice; with all that, Mr Seaga and his fellow travellers remain duly unimpressed!

And yet, if they are of the view that the judges of the JCPC are above falling into error or being manipulated, then he is invited to summon one of his students at the UWI or the University of Technology to conduct research concerning the grave error into which a judge of the JCPC fell in the Agusto Pinochet case of not so long ago, and why the matter had to be heard anew.

Perhaps the unkindest cut wrapped up in Mr Seaga’s outlandish claim is reserved for what it seeks to inflict upon our Caribbean sister States, which have already opted for a lesser breed of justice by adopting the CCJ as their final appellate tribunal. For, it must mean, according to his logic, that, by not deciding to let the people speak in a referendum, the Government and Parliamentary Opposition of Barbados, Guyana, Belize, and now Dominica have, by sinister means, subverted their system of justice and subjugated the rights of their unsuspecting people.

 

Referendums

Well, to repel that spurious argument, a challenge is now being sent to Chancellor Seaga by the authorities in those four Caribbean states, members of the Preparatory Committee for the Establishment of the Caribbean Court of Justice, the membership of the Regional Judicial and Legal Services Commission, the judges of the CCJ, and the Government of Jamaica, among several others: Assemble a group of your brightest law students from the UWI and the University of Technology and from members of the Parliamentary Opposition (including its leader) to form a team to conduct research on the issue of no referendum for removal from the JCPC and fully accessing the CCJ, and for them to state whether that research reveals anything other than the following:

That, for some 81 years, none of the 40 independent countries (former colonies of Britain) with Canada starting the process in 1933 and which continued through to the Commonwealth of Dominica in 2014 have utilised the route of a referendum to de-link from the JCPC and to have its own final court.

Not a single one of those former colonies of the African continent, Asia, the Pacific Islands, Australasia, or Canada and four Caribbean states within the Americas, among the far-flung former British Empire, has put that long-standing principle to the test. Why? There are several powerful and unassailable reasons:

ONE: It has long been established and acknowledged that a referendum is, in essence, a general election, with a political campaign being the axis on which it spins. No country that has inherited the Westminster approach to jurisprudence has wished that matters relating to its judicial system be exposed to the political hustings, for the harm that is likely to be done to its judiciary.

Now, we appear to have persons in Jamaica, including Mr Seaga and his fellow travellers, who have arrogated unto themselves a kind of wisdom that is not to be found in the conventions that are packaged in the storehouse of the ages, and wish for Jamaica to go where all others have feared to tread.

The researchers will report that, interviewing Prime Minister Ralph Gonzalves, under whose administration that principle was recently put to the test, with disastrous consequences, revealed the stress which the governance system of St Vincent and the Grenadines experienced, as a result. It has long been found within the Commonwealth that this is a principle that is not to be trifled with.

And, even so, the highly charged political question will inevitably surface: why are you afraid to trust the people; to let the people speak? But, its clearly not a matter of not trusting the people, its rather the mission impossible of preventing the irreparable damage that could be done to your judiciary by what may be uttered from the uncontrollable partisan political platform.

TWO: The research will show that, neither in our constitutional arrangements nor in the judgment of the JCPC, is there any requirement other than that of a two-thirds majority vote to be obtained upfront in each House of Parliament for Jamaica to subscribe fully to the appellate jurisdiction of the CCJ.

Now, there is this insistence that a referendum be held immediately, in defiance even of the JCPC ruling, with a cost in the region of one billion scarce taxpayers dollars, when that is not required by law or constitutionally provided for, and which is, moreover, long acknowledged to be fraught with great danger to our judicial system.

THREE: The former President of the Supreme Court and head of the JCPC has, in diplomatic but strong terms, advised that he would prefer that Jamaica make use of the court that it has assisted in establishing in the Caribbean, since his judges are utilizing too much judicial time on issues that are of no general concern to the public in the United Kingdom.

In tendering their report, the researchers may choose to suggest as follows. Consider if you and your family have been occupying the upstairs flat at your mothers house for a number of years, and one day, your mother says that she wishes to have the space to accommodate her sisters family now relocating from England.

Surely, it would hardly make any sense for your family to gather to have a referendum on whether to leave your mothers house. And there are two further factors: your mothers offer for your family to remain in the house and occupy the one-bedroom in the den below. Also, that you are a major stake-holder in a house fully paid for, now occupied by three, and soon four, families without a word of complaint coming from any of them.

FOUR: Access to our courts, at whatever level, is a fundamental right to which our citizens are entitled. There is now the prohibitive cost to the vast majority of our people to exercise that right in the case of the JCPC. An itinerant CCJ will allow our citizens to enjoy rights that they have never been able to exercise under the present system.

The incisive power of that factual situation was clearly not lost on Mr Seaga; he could hardly have side-stepped it, so he sought to address it in this way: (The CCJs) provision of cheaper justice for litigants is no longer a feature, since the Privy Council has indicated that it will give its services freely in Jamaica if invited, at a cost of only bed and board for the justices and their assistants.

 

Issues with judges

The researchers would be able to speak to that assertion of Mr Seaga, but they will undoubtedly unearth that the former President of the UK Supreme Court did proceed to advise that, if we were prepared to stick with the JCPC, then we may also have to be prepared to accept judges of the same status as our Court of Appeal judges, or lower, to deal with our petitions an offer of the one-bedroom downstairs? A Grecian gift?

FIVE: The researchers will discover that history and good sense have shown that you do not hold a referendum on an issue, a possible outcome of which it does not lie within your power to implement, perpetuate or enforce. If the people vote to remain with the JCPC, the power to enforce and give life to that vote lies not in Kingston or Kingstown or any other capital, except in London, Whitehall.

SIX: The study would likely lead the researchers to ask: Why would legislators, of whatever stripe, be unwilling to perform their duty instead of wishing to leave the performance of that duty to the citizens who put them in the Parliament to protect and enhance their rights?

And in respect of the specific Bills to be voted on in the Jamaican Parliament, there is the requirement of just one vote in favour by an Opposition Senator, instead of continuing to insist on the expenditure of a billion dollars on a referendum that the research will not, and cannot, sanction. Besides, the researchers could hardly ignore the little matter of Jamaicans being asked, at such great expense, to decide whether they wish to remain the only country on the planet where the citizens are obliged to obtain a visa to enter the country in which one of their courts is to be found.

What say you, Chancellor Seaga, Leader Andrew Holness? Still resolved to kick against the pricks; to have Jamaica go where all before us have feared to tread?

A.J. Nicholson is the leader of government business in the Senate and minister of foreign affairs.

For more on this story go to: http://jamaica-gleaner.com/gleaner/20150104/focus/focus3.html