Byron Buckley, News EditorLAST WEEK'S ruing by the United Kingdom-based Privy Council ironically a remnant of colonialism essentially stymied an undemocratic attempt by the governing People's
National Party (PNP) to install a new final appellate court, the Caribbean Court of Justice (CCJ).
Praise, though, must first go to the Opposition Jamaica Labour Party (JLP), the Independent Jamaica Council for Human Rights, Jamaicans for Justice, the Jamaican Bar Association and
constitutional lawyer Dr. Lloyd Barnett, for taking the matter before the courts.
The British tribunal on Thursday ruled, in effect, that the government should get the consent of the populace through
bi-partisan consensus in Parliament or the holding of a referendum.
The law lords argued, essentially, that the CCJ should, at least, be entrenched in the Jamaican Constitution because the proposed court will impinge on the workings of other bodies that are already entrenched. These include the Supreme Court and the Court of Appeal.
PROCESS OF ENTRENCHING
The process of entrenching a provision in the constitution, allows both for the populace to exercise its decision-making powers and, more importantly, has the effect of
protecting the rights of the people.
"... An important function of a constitution is to give protection against governmental misbehaviour," the Privy Council notes in its ruling.
It says the three CCJ-related acts passed by Parliament "give rise to a risk which did not exist in the same way before."
The three acts are Judicature (Appellate Jurisdiction) (Amendment) Act 2004; the Caribbean Court of Justice (Constitutional Amendment) Act 2004; and the Caribbean Court of Justice Act 2004.
"The Board (Privy Council) is driven to conclude that the three acts, taken together, do have the effect of undermining the
protection given to the people of Jamaica by entrenched provisions of Chapter VII of the Constitution," the ruling states.
If the CCJ is to be entrenched, the procedure requires a minimum of six months of consideration by each House of Parliament and a vote by two-thirds of the majority of all the members of the House of Representatives and the Senate.
If we wish to have the CCJ deeply entrenched, then the procedures just outlined would be complemented by a
majority decision of the electorate in a
referendum.
The Privy Council notes that the government has followed the correct procedure in seeking to abolish appeals to the British
tribunal this only requires legislation passed by a simple majority of members present in both houses.
NARROW INTERPRETATION
To be fair to the PNP, it did indicate a willingness to seek the approval of the electorate through a referendum to entrench the CCJ after it comes into
operation.
But as the British law lords have pointed out, it makes more sense to entrench the CCJ at the same time that the Privy Council is being replaced.
"... It would not appear to have been the intention of Parliament to revoke the right of appeal to the Privy Council without putting anything in its place, and this provision cannot, therefore, be severed," the law lords ruled.
The government, it seems, has erred by giving too narrow an interpretation of the constitution by insisting that the framers did not entrench the Privy Council as the island's final appellate court. In the
opinion of the law lords, the "present
question must be approached as one of substance, not of form".
But this is where good governance comes in.
It seems that the democratic sensibilities of the ruling PNP have become dull and need to be sharpened. Despite strong calls led by then Opposition leader Edward Seaga, backed up by several civic action groups, for the holding of a referendum in deciding to replace the Privy Council, the government remained stubbornly against it.
In the absence of explicit constitutional guidelines, one expects government to proceed according to its democratic instincts.
In fact, this is the direction in which Senator Trevor Munroe, professor of
government, has been pointing the P.J. Patterson-led government.
CONSULTATIONS
Professor Munroe consistently has implored the administration to adopt best practices in other jurisdictions in the use of referenda and similar consultative devices. He pointed, for example, to the frequent consultation of the American electorate on a wide range of issues during the holding of national and state-wide elections.
At one stage during the national debate on the CCJ vis-a-vis the Privy Council, the idea of holding an indicative referendum was mooted, only for those calls later to become muted.
By its reluctance to hold a referendum on the introduction of the CCJ, among
a range of other issues, the Patterson administration has brought into question the PNP's credentials as a vanguard of democracy.
The post-Independence generation wants to have its 'referendum experience' too. The PNP is still smarting from its loss in the referendum Premier Norman Manley called in 1960 to determine Jamaica's continued involvement in the West Indies Federation. It is unfair for the post-Independence generation to be held hostage by ghosts of a previous
generation.
There is a whole range of issues on which the populace needs to be consulted: casino gaming; decriminalisation of ganja; replacing the Privy Council with the CCJ; abolition of capital punishment, and further politico-economic integration via the CARICOM Single Market and Economy.
POLITICAL COSTS
It is uncanny that the first referendum was held over 40 years ago on a regional issue, and today it is a similar circumstance whether a proposed regional appellate court, the CCJ should replace the Privy Council.
It is to Norman Manley's credit that he was a true democrat, in that he called a referendum knowing that his party and
government could be defeated.
But he believed the issue warranted the people's input regardless of the political cost. The PNP since then has not repeated that fine display of its democratic tradition.
Despite its fears of the outcome of a
referendum, the PNP must do the right thing in honouring the strong democratic trait of its founder. In fact, some of the party's fears may be groundless.
The electorate today is better informed and educated than a generation ago. The regional university and other institutions have produced a significant coterie of tertiary-trained persons.
In any event, what's so wrong if the electorate decides against the CCJ as our final court of appeal?. The people's wish is supposed to prevail in a democracy.
What is clear is that the government had better move fast to get the referendum out of the way before the municipal and parliamentary election cycle kicks in.
A way to address the possibility of a
referendum becoming overly-politicised is for the government to establish a broad-based referendum commission and mandate it to manage all aspects of holding a plebiscite including the very important aspect of public education.
