Stephen VasciannieSPEAKING VERY loosely, sovereignty in Jamaica rests with the Jamaican Parliament, or with the Queen in Parliament. By this, it is meant that, as to legislative matters concerning Jamaican territory, Parliament makes the ultimate decisions. Still in this loose, general sense, ultimate powers of enforcement or sovereign powers rest with the Jamaican Cabinet, while the power to interpret the sovereign will of Parliament is a judicial function, lying ultimately in the Judicial Committee of the Privy Council (acting as the final Jamaican court).
Sovereignty, therefore, rests in large part with the Jamaican Parliament. This formal description, however, may need to be qualified in at least one significant respect, for, within our system of government, the electorate determines which of our nationals should exercise sovereignty on our behalf. With this in mind, it is fair to say that sovereignty really lies with the people of Jamaica, and when we refer to Parliamentary sovereignty, this is just a short-hand for positing that Parliament acts on behalf of the sovereign people of Jamaica.
It follows from this and, of course, from the electoral power of the people, that in our political system, Governments need to be sensitive to popular will: even as the Executive steers the ship of state, it must remain conscious of the people shouting from the bow, the cabins, and elsewhere.
Similarly, given that sovereignty rests ultimately with the people, those entrusted with political leadership must be accountable for their actions. On any matter of state, it cannot be enough for the leader to proclaim "I am not in that": accountability implies rational and serious responses to the concerns of the populace. Sovereignty, meaning the ultimate powers of the State, rests with the people, and those acting on our behalf must be both responsive, and accountable, to the people.
Now, as a part of this concept of sovereignty, it is also accepted that the Government acts to prevent the incursions of other States or entities into our territory. Thus, we have an army, ostensibly to defend us from forcible measures of intervention, and we have work permit laws, laws as to naturalisation and citizenship, anti-dumping laws, quarantine laws, and so on, which acknowledge that in some cases it may discriminate in favour of our nationals.
The arrangements that defend Jamaican sovereignty from foreign incursions are, in most instances, easily justifiable. The Jamaican people have put the legislature in place, and we expect the legislature to lay down terms and conditions under which non-nationals may operate within the society. In practice, however, the precise specification of these terms and conditions is a matter of considerable controversy, and, regrettably, there are few guiding principles around which consensus may be constructed in Jamaica.
Take the emerging skirmishes concerning the new managers for the National Commercial Bank, as an example. In their Letter of Intent to the International Monetary Fund, dated July 19, 2000, Minister Davies and Central Bank Governor Latibeaudiere noted that, with respect to the National Commercial Bank (NCB), "the government realises that there is an urgent need to prepare the bank for privatisation in 2001/02", and that "a new management team for NCB will be put in place in 2000/01".
On its face, the plan to install new management at NCB, and to sell the bank, may seem to be decisions driven essentially by economic principles, including the need for efficiency, profitability and prudential management. But hold on: the advertisement for these new managers was published in an English paper (we are credibly informed), the salary of one of the recruits for the bank is said, by the Opposition Spokesman on Finance, to be large, and all three new managers are non-Jamaicans. Does this raise issues of sovereignty?
Well, not in any formal or legal sense, for clearly the constituted authority (in this case the NCB Board, I presume) have decided that foreign recruitment is necessary, and this falls well within the area of their discretion. But, having regard to Jamaica's work permit laws, I suppose that somebody, somewhere, will need to establish that the banking positions in question are such that no Jamaican is available to take them.
This, for me, is where the difficulty arises. In the first place, there are some Jamaicans who may well be competent for the present purposes. For one thing, NCB now has persons in the upper echelons; by what process of reasoning was it concluded that none of these persons was eligible for consideration? And, for another, having regard to the London Times advertisement, one presumes that top management in, say, other major banks in Jamaica could feel justifiably aggrieved that they were apparently excluded from consideration by the relevant authorities.
This kind of exclusion may not confront legal principles of sovereignty, but I wonder whether they are consistent with the political concept that Jamaicans should be given fair opportunity to fulfill their potential in Jamaica. I am not suggesting that the jobs in question should automatically be given to Jamaicans; I am, however, raising the question whether the method of recruitment was inherently advantageous to foreigners.
Warrantless searches
Another issue which has raised the question of sovereignty albeit somewhat tangentially concerns the matter of Claudia Kirschhoch. In the quest to ascertain what has happened in this very disturbing case, the Government has opted to co-operate with the Federal Bureau of Investigation (FBI), and to allow Valerie, a six-year-old sniffer dog, into the country without applying the legally required quarantine period.
Again, from the point of view of formal, legal sovereignty, co-operation with the FBI, and the granting of the permit for Valerie, pose no special problems. Nevertheless, as regards reported methods of operation in the search, there are reasons for disquiet. From what has been revealed, it seems that warrantless searches have been relied upon (though perhaps consent has been given), and, more irritatingly, Valerie has been shown invading bedroom privacy, and atop at least one bed.
It may be that this type of activity is offensive, but acceptable on the basis that it may serve the greater good. Maybe, but one wonders whether the US Government would allow such incursions into personal dignity on US soil in search of a Jamaican. Or, whether Jamaican authorities would, in Jamaica, in search of a Jamaican. We should at least seek reciprocity and consistency in such matters.
Finally, there is a growing body of opinion that we should ease up on the sovereignty arguments if this may help our national development. We should, for instance, be less sensitive to the prospect of foreign assistance in dealing with crime: Jack's Hill murder, gas station murder, media robbery, near miss for a bride-to-be, 557 killed violently since January, thieves, con-men, gunmen, rapists, extortionists and gang leaders abound.
In the face of this reality, bwoy, the case is easily made for help from any quarter.
Stephen Vasciannie, an attorney-at-law, teaches at the University of the West Indies.
