THE EDITOR, Sir:
Apart from a desire to be personally offensive I am at a loss to understand what could have prompted your observation in your editorial of May 30 that I am a person who "holds that the people have no 'justifiable' rights".
What has been said and admitted by everyone including yourself in the first paragraph of your editorial is that there is no constitutional requirement for a referendum to be held on the question of substituting the CCJ for the Privy Council as Jamaica's final Court of Appeal. It is also a fact, not usually noticed that there is no statutory authority under which such a referendum could be held and which would enable the machinery of the Electoral Office to be utilised for the taking of such a poll.
A special law would have to be passed to enable this to be done. Even if such a law contained a provision that the result of the referendum should be treated as binding this would still have no legal effect unless that law was passed as an amendment to the constitution and in order to have maximum effect it would have to be entrenched. The question would then arise as to whether this legislation should be confined solely and specifically to the issue of the CCJ or whether it should be a general provision for the holding of referenda in a defined class of policy issues and at whose initiative or demand.
If the former, then what is the justification for singling out this particular issue for such treatment out of the many important and indeed sometimes momentous issues with which Parliament has to deal?
If the later approach of a general law in respect of referenda is adopted then I would respectfully point out that this is a far more profound alteration of our constitutional system than the question of whether our final Court of Appeal should be located in London or in the Caribbean.
We have lived under a system of parliamentary democracy for a long while, in reality going back to the period before Independence. The heart of this system is the concept that periodically and for a limited time the people elect representatives who are entrusted with the responsibility to make laws "for the peace order and good Government of Jamaica". (Section 48 of the Constitution).
'COHORT OF POLITICIANS'
The 'cohort of politicians' to whom you scathingly refer consist, of course, of precisely the persons democratically chosen to represent the people and to make the multitude of decisions required by the complexities of governing a country in this day and age. It may be, of course, that these decisions would be better made by other self-selected persons but for better or for worse our system of government provides that they should be made by those who are prepared to submit themselves to the rigours of the elective process.
I note that you take comfort from the results of a Don Anderson poll showing that a majority of those polled were in favour of a referendum being held. But the question arises were those polled advised that such a referendum, to be meaningful, would require a fundamental amendment to our Constitution and would cost as much as a general election? In any event you omitted to mention that the same poll showed that a majority of those polled were in favour of Privy Council being replaced by the CCJ. Is not the 'cohort of politicians' entitled to take note of that?
Political leaders and political parties are often criticised for not dealing with important issues in their political campaigns and for not carrying out the undertakings on their election manifestos. I therefore find it exceedingly strange that you dismiss as of no importance the fact that in their respective manifestos both the PNP and the JLP made their respective positions on the CCJ crystal clear. The PNP manifesto expressly stated that if elected to govern, it would abolish appeals to the Privy Council and substitute the CCJ. The JLP manifesto made it equally clear that they would retain the Privy Council.
ARE WE CASTING DOUBT?
If an issue is so clearly and specifically engaged, how can anyone say that the electorate has not given a mandate to the successful party? If one takes the view that the issue raised in election manifestos mean nothing, then are we not casting doubt on the legitimacy of the whole process of democratic elections?
I also find it somewhat strange that you should be commending the JLP for saying that if no referendum is held they will, if and when elected, withdraw Jamaica from the CCJ. But since they and your good self are so sincerely committed to the principle of consulting the people in this matter should the JLP not be saying that if elected they will hold a referendum on the issue of whether or not Jamaica should remain within the CCJ and should the people not also be asked to approve some alternative if the decision is to withdraw?
It is really a great pity that the substitution of the CCJ for the Privy Council should have become entangled in the issue of having a referendum or not. There are many other important aspects of the change... that could have benefited from constructive and informed discussion. The issue of a referendum in this particular case is a bogus one born of political opportunism, uninformed albeit well-intentioned thinking and sadly a residue of closet colonialism.
I am, etc.,
DAVID H. COORE. O.J., Q.C.
Ministry of Justice
