Robert Buddan THE PRIVY Council's ruling on the constitutional status of the Caribbean Court of Justice (CCJ) coincides with a change of leadership in the Jamaica Labour Party (JLP) and already there are signs that the stage is set for a new bipartisanship between government and opposition on constitutional issues like the CCJ, the Charter of Rights and the death penalty.
In 2003, Mr. Patterson told the PNP's annual conference that he hoped the JLP would agree to a time table for constitutional reform by March 2005. More recently, he said he regretted not achieving constitutional reform during his tenure as Prime Minister. The Privy Council's ruling has reopened the door for a new round of agreements on constitutional reform and Mr. Patterson's dream might yet be fulfilled before or soon after he retires.
The Privy Council's ruling actually vindicates the Government's position on four grounds that parliament had the right to withdraw from the Privy Council without resort to a referendum since no entrenched clause was involved; the three parliamentary bills introducing the CCJ did not undermine Jamaica's courts; the CCJ would be independent of political influence; and the CCJ should be entrenched in the constitution. It is because the CCJ is not yet entrenched why the ruling goes against the govern-ment's position. The question now is how to entrench the court.
THE JLP AND THE CCJ
One problem in the past has been that the Jamaica Labour Party's (JLP) position on the CCJ has not been straightforward. First, it held that Jamaica should not withdraw from the Privy Council and join the CCJ. Then it called for a referendum on the CCJ, but Mr. Seaga's position was that the JLP would not support Jamaica's membership. This caused the government to shy away from a referendum fearing that it would be used for political purposes generally and obstruct membership in the CARICOM Single Market and Economy (CSME).
Since about May 2003, different spokesmen for the JLP began to offer different positions. In the Senate on Friday, May 10, 2003, Mr. Golding said that the JLP would vote for membership in the CCJ if the government agreed to a referendum saying, "I think I can speak for the entire Jamaica Labour Party..." While government members voted for Jamaica's membership in the CCJ and opposition members voted against, Mr. Golding abstained. Mr. Golding clearly had a position in between these extremes. Delroy Chuck represented the view that the CCJ should only have original jurisdiction in the CSME and former JLP senator, Oswald Harding, feared that the CCJ was being established as a hanging court, even though he supported it in principle.
In the midst of this, Mr. Seaga offered a negotiating position, that Jamaica should stay out of the CCJ for 10 years and then the JLP would support the decision to join. Mr. Golding offered that if the government agreed to a referendum the JLP would support joining in a much shorter time. Nothing was heard about these negotiating positions after. In this confusion and after Parliament passed the three bills for Jamaica to join the CCJ, the JLP challenged those bills in the Privy Council on the grounds that they were unconstitutional. Bear in
mind that the time table to join the CCJ was influenced by time since the CCJ was to be inaugurated by November 2004.
A NEW BASIS FOR BIPARTISANSHIP
There is now a new basis for bipartisanship. Mr. Seaga had insisted that the government's real motivation for championing the CCJ was to fulfil "the political destiny of an integrated Caribbean region," that is, a federation. As recently as December 2004, Peter Phillips said in Parliament that, "The Cabinet of Jamaica has no policy, no intention to enter Jamaica into a federation."
Mr. Golding, in one of his first public statements since Mr. Seaga's retirement from parliament, suggested that Jamaica should actually renew the debate on federation or some form of regional political unity since closer political unity would strengthen the potential of the CSME. Even under Mr. Seaga's leadership of the JLP, Delroy Chuck said that the JLP supported the CSME even though it did not support having the CCJ as Jamaica's final appellate court. There was never a consensus in the JLP and now the positions taken by Golding and Chuck are coming to the
forefront.
It is now possible for the new JLP leadership to state its unequivocal support of the CSME. It should also say that it supports Jamaica's membership in the CCJ and agrees to the original jurisdiction of the court as necessary to activate the CSME.
Furthermore, it should say that it will support the necessary constitutional amendments to entrench the CCJ in the Jamaican constitution. Along with this, it should say it will work to complete discussions on the Charter of Rights so that it, too, can be entrenched. It would then discuss in the party and with the government the question of the death penalty since this is central to its concerns over withdrawing from the Privy Council.
On this point, the JLP must review the future of the Privy Council itself. Paul Robertson had said that the government's interest in withdrawing from the Privy Council had less to do with capital punishment and more to do with preparing the country for the day when Britain abolishes the Privy Council. Should the JLP come around to this position then the way would be clear for making the CCJ Jamaica's final court of appeal.
There would be nothing to
prevent the country from going to a referendum on constitutional reform which would make Jamaica a republic, entrench the CCJ and the Charter of Rights with the JLP supporting these positions.
However, should the JLP still decide not to support withdrawal from the Privy Council it can ask that this question be put to the
people in that referendum. Government should now be satisfied that, under the new JLP leadership, the referendum will not be made into a campaign against membership in the CSME itself.
THE FUTURE OF THE
PRIVY COUNCIL
The JLP needs to research the future of the British Privy Council. The two parties in Britain hope to abolish the House of Lords and the main difference between them is whether a new upper chamber should be mainly appointed or mainly elected. Modernisers of the British political system also wish to abolish the Privy Council on the grounds that it violates the separation of powers principle (since the prime minister appoints the Lord Chancellor who is head of the judicial system and also a member of the cabinet, and because the members of the Privy Council are also members of the Upper House, the House of Lords). In fact, one British commentator says that if Britain were now applying to join the EU, it would be rejected for violating the modern democratic principle of separation of powers upon which the EU insists. The CCJ in fact is more independent of politics and would better reflect the separation of powers doctrine than either the 'political' judiciary in Britain or the politically-appointed US Supreme Court. This should attract Mr. Golding's support since he favours stronger separation of powers.
The British House of Commons is debating a Constitutional Reform Bill to replace the Law Lords with a Supreme Court that will be independent of Parliament. New Labour and the Liberal Democratic Party support this reform. They expect that the Bill will get enough cross-party voting to succeed. In fact, it is the Law Lords themselves in Britain's House of
Lords who are blocking the change saying that there is as yet no new building erected for a Supreme Court.
The JLP should research this issue so that it is not left in the
embarrassing position of championing an institution that even the British say is old-fashioned and undemocratic, and which is on the way out. Realism then should be the basis of a new Jamaican bipartisanship on this and other matters of constitutional reform. There is no better opportunity for Bruce Golding's JLP to demonstrate that it is breaking with the obstructionism of the past and establishing the basis for a new regionalism and a new Jamaican political order.
Robert Buddan lectures in the Department of Government, UWI, Mona. You can send your comments to robert.Buddan@uwimona.edu.jm or infocus@gleanerjm.com
