Sunday, October 25, 2015

The CCJ: The Role of the electorate


The CCJ debate in the Senate is in full swing: lots of distractions, drama, and rhetoric but woefully devoid of substance.

We have expressed our discomfort with the decision of Jamaica’s final appellate resting solely on the vote of one Opposition Senator “exercising his conscience” and being anxious to be on “the right side of history”.

One of the key elements is the role of the citizens (not their elected representatives or their appointed agents) in the making of this decision. On strict Constitutional terms there is none.

The Constitutionalist:

The PNP Government has decided to replace the Privy Council with the CCJ as Jamaica’s final appellate court

The severing of ties with the Privy Council requires only a simple majority in both Houses. The government of the day has such a majority so that is a relatively simple exercise.

Both our Supreme Court and our local Court of Appeal are “entrenched”.
The UK- based Privy Council has stipulated that the replacement of the Privy Council (which was not entrenched in our Constitution) should enjoy the same level of protection (read entrenchment) as our Supreme Court and Court of Appeal.

The entrenchment of its replacement—the CCJ or our local final appellate court ----- requires the 2/3 majority in the case of the plainly “entrenched” plus a referendum for the “deeply entrenched” in addition to certain specified time periods.

The PNP Government is not into “deeply entrenchment” but mere “entrenchment” as stipulated by the UK- based Privy Council.

Should citizens have a say?

There is the view that to put such a “sensitive” matter to the public would expose the Judicial system to the vagaries ( and vulgarity ) of politics. Somehow this would “politicize” the matter—a somewhat dishonourable and ignoble exercise.

“We commit to a Constitution that is truly
grounded in the will of the Jamaican .
people and pledge that, as soon as
possible after the General Election, we will
seek consensus to pass the legislation
required to achieve the main elements of
constitutional reform that have so far been
agreed.  These include:
  A Jamaican Republic headed by a
  Substitution of the Caribbean Court of
Justice for the UK-based Privy Council
  An updated Charter of Rights to
reflect current thinking on human rights

Before taking effect, we will ensure that
these constitutional changes are
submitted to the Jamaican electorate for
their approval.”
[Source: People’s National Party Manifesto 2007 Chapter 1; Constitutional Reform, p8] 

That commitment by the PNP represented a reversal of its position as highlighted by the Jamaica Observer in an article “Now PNP says it will put CCJ to referendum”, Friday, August 10, 2007

“The People's National Party (PNP) has made an about-turn in its position on the Caribbean Court of Justice (CCJ), promising to put the issue to a plebiscite within the next five years as part of other proposed changes to the Constitution.
The commitment is outlined in the ruling party's manifesto which it launched last night at The Courtleigh Auditorium in New Kingston.”
[their emphasis]

This commitment was given by a PNP government now headed by Party leader and Prime Minister, Portia Simpson-Miller and represents a departure from the stance taken by the PNP government under former Prime Minister PJ Patterson who, “had stoutly resisted calls by the Opposition Jamaica Labour Party (JLP) and rights groups for the CCJ to be put to a referendum.”[emphasis added]

It can be argued that the commitment was conditional on the PNP being elected to form the next government as the general elections were to be held on August 27, 2007. The PNP lost.

Some questions:

Did the PNP Government “politicize” the issue by reversing its position and including a commitment to involve the Jamaican electorate as soon as possible after the General Elections?

Was that a blatant vote catching exercise?

Was the substitution of the Caribbean Court of Justice for the UK-based Privy Council an agreed  element of the constitutional reform?

What must be made of the fact that the PNP in its 2011 Manifesto seemed to revert to the original stance taken by PJ Patterson?

We will also complete the long journey of de-linking from the Judicial Committee of the Privy Council as our final Court of Appeal and fully embracing the jurisdiction of the Caribbean Court of Justice.”
[Source: 2011 Manifesto of the People’s National Party p39]

No mention of:
  • the will of the Jamaican people;
  • seeking consensus of that which has been agreed;
  • submitting constitutional changes to the Jamaican electorate for their approval.
Is there any merit in the argument that the PNP, having "politicized" the issue in its 2007 Election Manifesto, sought to "de-politicize" the issue in its 2011 Election Manifesto?

Does any of this really matters as only a tiny portion of the electorate has read the Jamaican Constitution and/or any Election Manifesto?