By A. J. Nicholson, Contributor 
Nicholson
ON MAY 11, 1655, we are told, Admiral Penn and General Venables, after an unsuccessful expedition to the Central American mainland, came to Jamaica and, having overpowered the Spanish overlords here, captured Jamaica in the name of the British Monarch. Thirteen weeks shy of 350 years later, on February 3, 2005, our United Kingdom-based final court of appeal, an institution that has been cemented in our societal arrangements since 1833, delivered a landmark ruling that has, and will have, a profound impact on the future of Jamaica and the entire Caribbean.
Based on their interpretation of the Jamaican constitution, the law lords have ruled that the procedure adopted by the Jamaican Parliament to de-link from the Judicial Committee of the Privy Council and to be a part of our own court here in the Caribbean was not correct. Their interpretation of the relevant provisions in our constitution is contrary to the interpretation and the conclusions reached by our own judges here in Jamaica.
Immediately, there were voices raised, criticising our judges for failing to appreciate "such a simple point of law". When the Judicial Committee's interpretation of the law coincides with that of our own judges, those voices are never raised in appreciation of the "acumen and diligence" of our Jamaican jurists. But those voices must always find someone to deride even when the views of our judges are upheld. They then say: How come the lawyers on the losing side could not appreciate "such a simple point of law?". So that, for those voices, the Privy Council is always right; someone else is always failing to appreciate that "simple point of law".
FINDINGS VARY
And yet, those voices ascribe to the law lords an omniscience that even their lordships are not prepared to ascribe to themselves. For quite often, sometimes within months of delivering a 'landmark' ruling on a particular issue and hailed by the voices, they are driven to reverse themselves or vary their findings on the same matter.
In the wake of the recent judgement, the Opposition party in Jamaica, through Senator Bruce Golding,
suggested that there should be discussions between the Government and themselves on the results that would ensue. Prime Minister P.J. Patterson responded positively on behalf of the governing party and, in a letter to the Leader of the Opposition, Dr. Kenneth Baugh, made certain suggestions as to the ambit of those talks.
Even though some members of the Opposition party have had much to say concerning the ruling itself and the
contents of the prime minister's letter, I do not intend to move along that path. I wish, however, to suggest a developmental approach that ought to be taken in those proposed talks and what the people of Jamaica and, indeed, non-Jamaicans expect of us.
Regardless of the view that might be taken of the ruling of the Judicial Committee in his judgement of February 3, the law lords are telling us something that we already know; whenever the word 'entrenchment' is used concerning our constitutional arrangements, it imports, for its achievement, the indispensable requirement of
collaboration and cooperation between the Government and the parliamentary Opposition. Nothing else will suffice.
As we have seen from the judgement, there is only one question to be answered, that is, do we really want the Caribbean Court of Justice to be a part of our judicial system? For, in the Jamaican context, if both the Government and the Opposition are of the same mind and answer that question in the affirmative, that court would would be in place in short order.
LEGAL PROCEDURE
The first issue that has already been resolved is the legal procedure to be utilised to de-link from the Judicial Committee of the Privy Council. We recall that this had been the subject of torrid public debate, culminating in the assertion by the former leader of the Opposition at the last Jamaica Labour Party conference in 2003 that the Government had been trumped on this issue. Jamaica, he said, could not totally abolish appeals to the Privy Council at all, so long as Her Majesty remained our head of state. So, checkmate!
The Privy Council has now ruled that Jamaica may abolish all appeals to that body, and still retain the monarch as head of state, by the affirmative vote of a majority of the members of each House the procedure used in the passage of the bills that were challenged.
SOUND AND SECURE STRUCTURE
The second issue has been whether the proposed new court would have the kind of sound and secure structure that is required. The law lords did not say that the arrangements in the agreement Establishing the Caribbean Court of Justice are perfect. But, after a thorough examination of the agreement, they did have this to say: "...The Board has no difficulty in accepting, and does not doubt, that the CCJ agreement represents a serious and conscientious endeavour to create a new regional court of high quality and complete independence, enjoying all the advantages which a regional court could hope to enjoy".
So that their lordships in the United Kingdom have placed their stamp of approval on the arrangements that have been put in place to ensure the integrity of the institution that is proposed. The people of the Caribbean, therefore, even if we ourselves had doubted our ability to do so, have conscientiously endeavoured to put in place an institutional structure of "high quality and complete
independence".
With those two issues out of the way, a third question has been addressed by the Privy Council: What is the procedure by which Jamaica may come to subscribe fully to the Caribbean Court of Justice? On this question, I am driven to repeat what a law professor from the United States of America said to me, as he engaged me in conversation on the ruling. I paraphrase: "The agreement states," he said, "that it is desirable that the court be entrenched in the constitutions of the several territories. The Jamaican government maintains that it is their view that the court should be eventually entrenched in the Jamaican Constitution so that it may find a firm and permanent place. The Opposition and the other appellants in Jamaica say that the court should be entrenched in the Jamaican Constitution, up front, so that it may firmly and finally be in place. The Government and the Opposition and the other groupings have submitted to the lordships how that entrenchment procedure may be implemented.
ENTRENCHMENT
"Entrenchment", he continued, "requires cooperation on both sides of the aisle in your Parliament, whichever route that may be employed towards achieving it. So, all that the Privy Council is saying in its judgement is: Why come to us? You have all said that you wish the court to be entrenched in your constitution; you have told us that you know how that is to be done; so go and work out your own salvation; we cannot help you with that; this is a test of your maturity as a people".
Therefore, as has been said, entrenchment is not only a matter of procedure. Its achievement requires cooperation, from beginning to end, from both sides of the political divide. So the real and fundamental question remains: Do both political parties want the Caribbean Court of Justice to be a part of our judicial system?
The Privy Council is telling us something that we have constantly ignored in Jamaica, to the great detriment of our development as a people. It has been well nigh impossible, over these many years, for Government and Opposition to find common ground on any single issue. Three hundred and fifty years after Penn and Venables came to these shores, we are obliged to ask ourselves how we can find any good reason to engage in a partisan political dog-fight over de-linking from what used to be called the Great Imperial Court of the British Empire and establishing our final court for Jamaican litigants right here in the Caribbean.
The law lords in London, England, have encouraged us to move in a more wholesome and less divisive direction. Another opportunity has been presented to us to engage in mature deliberations concerning issues of profound importance to the development of our people. The Government will engage in any meaningful discussions that can point a new way of doing business in the governance of our country.
The establishment of the Caribbean Court of Justice has always been about how we wished to define ourselves as a people. We may choose to ignore the wider message being sent to us by the law lords in London and proceed with business as usual no collaboration; no common ground; our position is non-negotiable. But if we choose to stop, look and listen to that wider message for cooperation and its profound implications for our movement forward, this judgement could result in being the greatest gift that we would have received from the British, three centuries and a half after Admiral Penn and General Venables made their way on to the shores of Jamaica.
The question is: Will we?
Senator A.J. Nicholson
Attorney-General.
