A.J. Nicholson | Walking on our feet or on our knees?
Incomprehensibly, as the dawning of 2023 has come and gone, Jamaica continues to lurch from year to year, clinging unsteadily to the apron strings of the erstwhile Mother Country following the transition from Elizabeth II to Charles III as head of state.
Michael Manley, as prime minister, addressing “the anger of the United States” against our friendship with neighbouring Cuba, emphasised that Jamaica’s stance was “part of the world alliance of Third World nations that are fighting for justice for poor people”, and famously pronounced that, as long as he remained head of government, Jamaicans would “walk through this world on our feet and not on our knees”.
Shockingly, half a century later, the thinking embodied in that culturally uplifting pledge cannot be regarded as applying to 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.
The Jamaican authorities have, ostrichlike, ignored the history-making issuance and fulfilment of the stark warning given by Lord Nicholas Phillips, the inaugural president of the UK Supreme Court, that, should we unashamedly continue to impose on “the judicial time” of their highest judiciary, judges who operate at the level of our Court of Appeal would be drafted on to panels to hear our petitions.
The further outrage is that, across the broad sweep of history, Jamaican nationals have had no companion anywhere among the peoples of the world with the unparalleled, hitherto unthinkable record of having to obtain a visa to be physically present in one of their courts.
Prime Minister Manley’s admonition would have specific relevance to the indignity that befalls our lawyers of enduring the demeaning experience associated with seeking to obtain a travel visa to be present, and as legal representatives, in Jamaica’s highest court, where they are not gladly received.
Some legal minds hold that the visa requirement 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.
While the contention has not been tested in the courts, the lingering tragedy is that the imposition adds substantively to the acknowledged stumbling blocks that have weighed heavily against the interests of the disadvantaged majority since Emancipation, and there is no indication that it matters one iota to our government which has the duty, and shares with the Opposition the power, to do something about it.
A fruitful study could be conducted as to why, apart from two small Pacific island states, Tuvalu and Vanuatu, the only independent countries remaining wedded to the Privy Council are those Caribbean states with the majority of their people having descended from forebears who were ‘emancipated’ after enslavement by the British.
DEPRIVING LAWYERS OF MEANINGFUL EXPERIENCES OF PRACTICE
Such a study would perhaps reveal, inter alia, why the government is strangely satisfied with only three or so petitions being heard annually by our final court, essentially stymieing the development of the country’s jurisprudence, and uncaringly depriving the majority of our lawyers of the meaningful experience of practice at the highest level.
The obdurate obstinacy against severing the link from the British institution is not confined to the governing political party. Some advantaged Jamaicans are not shy in declaring their absolutely uncompromising stance that the link should remain undisturbed.
They are not impressed with the appropriateness of the vision-filled arrangement of the judges of the regional court being attuned to the culture and circumstance within which we live; that the judges will present themselves right here on Jamaican soil to hear our petitions, allowing for access long denied to our less privileged.
They are unmoved by the high commendation that the judgments and general operation of the court receive from the cognoscenti internationally; that sister CARICOM territories which have acceded fully to the court have had no complaints whatsoever.
Neither are they concerned that, without making prudent use of its services, the financial requirements for the operations of the court are met, in part, from Jamaica’s contribution provided from our citizens’ tax dollars, including their own.
They subscribe to the heresy that we are not qualified to “render justice to ourselves”, sharing with this government the preference of Jamaica continuing to genuflect at the doorstep of the former imperial overlord, rather than walking on our feet, “fighting for justice for poor people”.
Never mind that, within a mere 10 years in 2033, Jamaica will have been linked to the Privy Council – inaccessible to our economically disadvantaged people – for all of two centuries. The government and some special interests stand together, oblivious to the convention-shattering warning from the highest echelons of the British justice system.
Access to justice, a pathfinding element in nation-building moving toward the just society, cannot reckon with a Pontius Pilate approach. Indeed, on this imperative of fairness, the voice of human rights activists all over the world is always unmistakable, zealously challenging the conscience of the authorities.
This government stoutly refuses to address the limp, fractured setting that characterises the pinnacle of our judicial structure, claiming that the issue of Jamaica acceding to the CCJ “is not settled”. A basic and fundamental question for them is: What makes that issue ‘unsettled’, other than their party’s unexplained defection and withdrawal from the commendable, developmental consensus maturely shared on all sides for decades along the post-Independence journey?
Who dares to forget that, under its present leader, the party that forms this government unapologetically seized upon what amounts to legislative terrorism, by conspiring to bind prospective senators to being unfaithful to their oaths in withholding their positive vote to prevent approval of legislation to amend the Independence Constitution for Jamaica to delink from the Privy Council and accede fully to the Caribbean Court of Justice?
It is beyond debate! The track record of this administration on legislation and constitutional issues has been glaringly unsettling, its signature being a stream of unsuccessful court excursions throughout the years. Proposals on the reform process must therefore be cautiously scrutinised, fearing a full-frontal push of partisan preferences rather than contemplation of the best interests, particularly, of our disadvantaged people.
For example, warily keeping our eyes wide open, Jamaicans must be extremely vigilant lest the country finds itself ushered into that unconventional zone occupied unaccompanied by Trinidad and Tobago.
The blueprint of Prime Minister Michael Manley’s inspirational beckoning to walk through this world on our feet and not on our knees undoubtedly was: ‘Keep Moving!’ – our primary and lasting duty.
Remaining at a standstill for near 200 years, structurally hitched to two absentee institutions fastened to the monarch – being our head of state and whose advisers provide final justice, within an unwelcoming inaccessible compass – strains all logic, defies all wisdom.
- A.J. Nicholson is a former minister of justice. Send feedback to email@example.com