By Calvin G. Brown (WiredJA)-Any review of the Jamaican constitution that does not take into consideration a shift from the Privy Council to the Caribbean Court of Justice, CCJ, can be considered a wholesale farce and a grand waste of time!
As has been argued by the learned King’s Counsel and former Minister of Justice A. J. Nicholson, we cannot countenance the “cold indifference of the present government to our country entering its seventh decade as a politically independent nation still having the Judicial Committee of the Privy Council as its final appeal court.”
“The shame is that Jamaica shares with just over a handful of Caribbean states the humbling experience of constant declarations coming from the United Kingdom authorities of their preference that we would “stop using their court”, advising us to make use of the internationally acclaimed regional tribunal which, by our own creative talents and industry, we have established for ourselves,” AJ argues.
“Some legal minds hold that the visa requirement for Jamaicans to enter the UK, offends against the provision in the Charter of Fundamental Rights and Freedoms which guarantees to citizens and legal representatives unimpeded access to their courts.
They contend that that unprecedented impediment cannot meet the test of being demonstrably justified in a free and democratic society.
Lord Phillips, formerly UK Chief Justice, has maintained that the Law Lords on the Privy Council were spending a ‘disproportionate’ amount of time on cases from former colonies, mostly in the Caribbean.
He told the Financial Times newspaper that “in an ideal world” Commonwealth country – including those in the Caribbean – would stop using the Privy Council and set up their own final courts of appeal instead.
Earlier this year, Opposition Leader Mark Golding wrote to Legal and Constitutional Affairs Minister Marlene, Malahoo-Forte, emphasizing the need to accede to the CCJ as the country’s final court of appeal and Jamaica should address both this and the move towards being a republic as equally important.
He said this was a fundamental issue of access to justice for our citizens and is a logical adjunct to moving away from the British Monarchy.
According to Mr. Golding, “the processes for our departure from both vestiges of our colonial past ought to commence simultaneously, with a commitment to achieving Jamaica’s final decolonization by completing both processes as expeditiously as practicable.”
“The expansion of our people’s access to their final court of appeal is a practical benefit of utmost importance to be derived from this constitutional reform, not to be further delayed.”
The Opposition leader told the Minister to “provide full and transparent disclosure of the specific changes to the Charter of Rights that the government intends to pursue, and of the amendments requiring a referendum that the Government intends to pursue (other than moving to a republic).”
Mr. Golding emphasised that he was “not willing to participate in an exercise that may lessen or weaken the Charter’s fundamental rights and freedoms, or which would result in more restricted parliamentary oversight of the executive branch’s recourse to emergency powers.”
He noted that the Charter of Rights was recently enacted, and important jurisprudence is already beginning to emerge from the Courts as to the meaning and effect of some of its provisions.
He pointed out that there was an important impending judgment of the Constitutional Court relating to the Government’s recent use of the States of Public Emergency, a matter which was the subject of adverse dicta by the Supreme Court in a previous case.
According to the Opposition Leader, he was not persuaded that this was an appropriate time to embark on this journey and sees no compelling need for a review of the Charter of Rights.
In relation to Jamaica becoming a republic with a Jamaican head of state, the relevant parameters have been discussed and agreed on by both political parties as a result of the extensive constitutional reform consultative process over the past twenty-five years, and the required legislative research has already been carried out.
In the end the question must be asked: what are the government’s specific priorities as it relates to the constitution reform process?
If it’s only to do with Jamaica progressing towards a Republican form of government, then it’s a no-brainer and does not need an elaborate committee as this discussion has already been had.
Why would we need to disturb the existing Charter of Rights and fundamental freedoms to which both political parties acquiesced in 2011 and which had served our citizenry well since then?
Or is it that the government wants a more liberal use of the States of Public Emergency, without having to resort to the constitutionally required input of the Opposition? Clearly, that is certainly not a wise idea!
