Decolonization
is a process by which nation-states reduce their dependency on institutions,
structures and processes imposed, copied or inherited from the colonial
experience. The ultimate aim is to fashion such to reflect the local realities.
The
process is a complex exercise varying in length, character and prone to a
number of challenges, distractions, resistance and set-backs. Sometimes
initiatives have to be undertaken by visionary leadership moving ahead of the
general edification of the populace.
A
failure to satisfy expectations invariably gives rise to calls for the return
to the “good ole days”.
The
Leader of Her Majesty’s Loyal Opposition has described the current debate on
replacing the Privy Council (PC) with the Caribbean Court Of Justice (CCJ) as
Jamaica’s final appellate court as a “ distraction”. The general reason given
is that it shifts the national attention from dealing with the dire economic
realities that are presently facing the country.
In
a sense Mr. Holness is right; and having made the point he should therefore
seek to limit or remove entirely that distraction. The issue then is about
getting political consensus on the matter.
Background
Our
colonial masters did not involve the general public in the fashioning of our
judicial system.
Furthermore the Privy Council was not
entrenched—deeply or otherwise---- in the Constitution of Jamaica. Hence a
simple majority in both Houses of Parliament is all that is needed for its
removal.
The rationale informing that arrangement was that the
PC as Jamaica’s final appellate court was to be a temporary arrangement until
the country developed the requisite skill, experience, confidence and trust to
have its own final appellate court.
At present the local judicial system is beset by a
number of problems, due directly to insufficient budgetary allocations since
political independence—if not before.
Jamaica was among the founding fathers of Caricom and
had been involved in the establishment of the CCJ. It has duly made its
financial contribution; which is a very significant sum (some US$23million).
However, Jamaica has refused to make the necessary constitutional amendment to
facilitate its accessing the appellate jurisdiction of the CCJ
Both political parties seem to agree
that now is an appropriate time to de-link the PC. The contention seems to be
centered on its replacement and the manner in which such replacement should be
entrenched in our Constitution.
The
PNP is of the view that the CCJ should be that replacement and should be
“ordinarily” enshrined requiring a 2/3rds majority of both Houses of
Parliament.
The
JLP present position is that that replacement should be a local Jamaican Court
of Justice (JCJ) and that the public should consulted via a referendum. So the
JLP is holding steadfastly to its position by blocking the move in the Upper
House.
Democratic
Overtures.
There
is the attractive argument that the electorate should be consulted on matters
of fundamental importance involving serious constitutional change. That is a
central characteristic of any democracy.
The
counter arguments: it is dangerous to “politicize” judicial matters, that the
referendum would be one dominated by non-judicial considerations; a referendum
would involve the expenditure of substantial sums; a referendum is not
constitutionally demanded for such a change and to have one would be setting a
dangerous precedent; the Commonwealth countries which have de-linked the PC
have done so without a referendum.
Destiny
There
can be no serious objection to any nation- state aspiring to have its own
judicial system located within its territorial boundaries. However, the manifestation of that
aspiration has to be based on the requisite infrastructure being in place and
its general public having trust and confidence in the supporting institutions.
Both
parties will agree that Jamaica is not yet at that stage. But this should not
prevent us from moving in the general direction by de-linking from the colonial
masters and placing reliance on others with a shared colonial experience and
similar national aspirations.
There
can be no harm in replacing the PC with the CCJ and at some future period
assessing the performance of such a court. In the meanwhile we could make a
serious attempt to address the challenges and thereby engender public
confidence and trust in our local judicial system.
Indeed
the rules governing the CCJ recognize that members may wish to withdraw from
its jurisdiction and mandates a 3-year notice. At some point in time the
Government of Jamaica may find it prudent to resort to that facility.
The
de-linking of the PC, its replacement with the CCJ and eventually by the JCJ
can be viewed as necessary steps in the process of decolonization. Care must be
taken to avoid distorting the distractions thereby delaying unnecessarily the
process of our decolonization. Public awareness of constitutional matters is a
formidable undertaking. Some limited amount of democratization of the process
can be achieved by the full support of the peoples’ representatives—elected and
selected. The precedent was set in the Charter of Rights.
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