Wed | Jun 19, 2024


Constitutional roadblock was bound to happen, says former attorney general and justice minister

Published:Sunday | May 19, 2024 | 12:10 AMErica Virtue - Senior Gleaner Writer
Constitutional expert Dr Lloyd Barnett.
Constitutional expert Dr Lloyd Barnett.
Opposition Leader Mark Golding (centre) is flanked by Parliamentarians Anthony Hylton and Senator Donna Scott-Mottley, members of the Constitutional Reform Committee, during a press conference hel last Tuesday at the Office of the Leader of the Opposition
Opposition Leader Mark Golding (centre) is flanked by Parliamentarians Anthony Hylton and Senator Donna Scott-Mottley, members of the Constitutional Reform Committee, during a press conference hel last Tuesday at the Office of the Leader of the Opposition on West King’s House Road in St Andrew.

The current impasse between the Government and Opposition, on the report of the Constitutional Reform Committee (CRC), was bound to happen, according to AJ Nicholson, a former attorney general and minister of justice.

Nicholson, speaking with The Sunday Gleaner last week, said the current position was predictable from the outset, and cited the continued silence from the Government on fundamental matters as evidence.

“I have been consistently stating, in writing, based on what has taken place over decades in former British colonies, the position of the PNP (People’s National Party) concerning Jamaica moving away from the Privy Council and subscribing fully to the CCJ, was encouraging the Government to see the light… ,” Nicholson told The Sunday Gleaner.

“Last year, when they established the CRC, ostensibly as a vehicle towards decolonisation, I publicly predicted that, with the awkward ‘phased agenda’ that they set, the outcome could be nothing other than where we are today. For the Government now to dare to suggest that where we are today has been caused by the Opposition is precisely nothing short of being Machiavellian,” Nicholson stated.

While the Government has indicated it will not address the country’s final court before the second phase of the CRC’s work, the Opposition has drawn a redline on what it has indicated are its sticking points.

Trust is broken

Marlene Malahoo Forte, the minister of legal and constitutional affairs, has acknowledged the trust between the political parties is broken.

Commenting on Friday’s meeting of the CRC, she said she was trying to bring the two sides to an understanding.

“The Leader of the Opposition made comments and we responded to his comments. I specifically asked if they were going to sign and they did not indicate,” she told The Sunday Gleaner. “I mean, if they didn’t sign because he made comments and we responded to the comments, I think he will have to tell the nation whether he is opposed to the move to abolish the monarchy. We know he would like the court discussed, but we can only move on the matters on which we have consensus at this time, and work to build consensus where it doesn’t exist… .”

However, still smarting from Opposition Leader Mark Golding’s public comments on his concerns about the CRC report, Malahoo Forte said she believes it was a mistake on Golding’s part to have raised the matter in public.

“Today (Friday) I was trying to ascertain a response on where the members stand, since the report only contains matters on which there is a consensus…,” she stated.

She acknowledged the Opposition might feel it did not benefit from anything coming out of phase one of the deliberations but said they should not feel that way because she does not consider it a win for the Government, but a win for the country.

Within the administration, it is reportedly believed that Holness’ aim is to achieve republic status for Jamaica, especially as there is no timeline for the start of phase two. Sources point to Trinidad and Tobago, which 47 years after becoming a republic, still retains the Privy Council as its apex court, even as the Caribbean Court of Justice (CCJ) headquarters is based there. The prime minister addressed the matter during last Wednesday’s post Cabinet press briefing, saying he was was disappointed, but not surprised by the PNP’s refusal to sign off on the constitutional reform report. He however left the briefing without taking questions.

PNP officials said the context of the issue must not be divorced from the current deadlock. They recall the effort Holness- then opposition leader - made to put himself in position to remove any Opposition senator who was sympathetic to the then Government’s argument for a two-thirds majority vote in the Upper House to adopt the CCJ as the final court.

Holness had senators sign undated letters of resignation giving him the right to remove them if they supported the Government in adopting the CCJ through a conscience vote. The matter was adjudicated by the courts in Jamaica, and the letters dismissed as unconstitutional. Nicholson said the current imbroglio must be seen within this context and that Holness’s history on constitutional matters cannot be trusted.

The former justice minister is soon to release a book titled ‘The Roadblock -Jamaica’s resistance to the Caribbean Court of Justice’, in which he said he would be providing more of his views on what has occurred up to this point.

Now a Holness government is asking the Opposition to trust it going forward, that phase two will discuss the country’s final court.

The country was set to transition by 2025, the general election year.

The history and context is a poignant memory for Golding, himself a senator during the time of the controversy around the undated resignation letters. He believes Holness’ history on constitutional matters cannot be divorced from the current impasse.

“First of all, I am awaiting the prime minister’s reply to my letter that was sent on May 7 requesting him to state the Government’s position on the issue of full decolonisation, as one seamless exercise whereby we leave the monarchy as head of state and the monarch’s court. I have not had that reply, and I have indicated that until I have that reply, until we know where we stand on that issue, our representatives have decided not to sign the report and I endorse that,” Golding said in response to questions from The Sunday Gleaner.

He noted that Malahoo Forte told Parliament last October that the prime minister would publicly state his position on the matter “in short order”. Seven months later, there has still been no word.

Just over three weeks ago, Golding said he spoke briefly at Parliament with the prime minister and indicated that a position was “fundamental to the Opposition and it wanted clarity on the Government’s position”.

The Opposition leader outlined other concerns.

“Apart from that fundamental issue, there are a number of other fundamental points in the final version of the report that was shared with me on a restricted basis. I reviewed it and identified issues of concerns which I documented in a memo, which I asked one of our two representatives to send to the Minister (Malahoo-Forte). I was a bit taken aback that they sent the report to Cabinet, without first giving the CRC a chance to review those comments,” said Golding.

Dr Lloyd Barnett, who is a member of the committee and the country’s pre-eminent authority on constitutional reform, has responded to Golding’s concerns but the Opposition leader had not yet had time to review his comments.

“I think the ball is in the Government’s court to decide how they want to move forward with this. Our position has been consistent from as early as June 2022, before the CRC was established, when the minister first outlined her plan for moving forward. I wrote to her and made it clear that these issues are of great importance to us. Our position was known all along,” Golding stated.

“I can only say the Labour Party has established a specific ministry to focus on this matter. I don’t know if a PNP government will keep a ministry to focus on this matter. If that is not the biggest indication of a commitment to finish the work… . If we succeed on this there is something else to do, you know. And with a Labour Party government, phase two will proceed right along. And I am assuring you that, with a Jamaica Labour Party government, the court’s decision must be made,” she said, adding that the terms of reference were not about phases of, but an entire reform picture.

In the meantime, Lester Mike Henry is an 88-year-old Jamaican politician and legislator. He has, for decades, posited that the United Kingdom should pay reparations to Jamaicans and their descendants for chattel slavery. He believes the current deadlock sees the nation holding on to a relic of history from which it should have long separated itself.

“We should have begun this process from when we were becoming independent, and recognising man’s inhumanity to man which they didn’t teach us in books, leaves me very concerned with what is happening at the moment with the reform process,” Henry told The Sunday Gleaner last week.