CCJ scrimmage: Golden opportunity for a Messiah

Last Tuesday, the three bills to establish the Caribbean Court of Justice (CCJ) as the final court of appeal for Jamaica were approved in the Lower House with both sides of the political divide voting along party lines.

Forty-two government members voted in favour of the bills, while 21 opposition members voted against. The approval of the bills was greeted with thunderous applause from the government members and silence from the opposition side. Go figure!

Readers may recall that this is the second time that these three Bills have been before the Jamaican Parliament. The first occasion was in 2004 when the bills were approved - again along party lines - in both Houses of Parliament. However, the Opposition, the Jamaica Bar Association, and the Independent Jamaica Council for Human Rights challenged the passage of the Bills all the way to the Privy Council in England, where they succeeded after losses before the Jamaican courts.

Privy Council Ruling

Suffice it to say, I disagreed with the Privy Councillor's ruling in the above-mentioned case in 2004, and I still do today. In a

nutshell, their lordships concluded that the process of amending the Constitution to replace the right of appeal to the Privy Council (an unentrenched provision) with the right of appeal to the CCJ had to be like the process of amending the Constitution to replace an entrenched provision.

The Privy Councillors arrived at this conclusion by "implication" since there was no such "expressed" provision in the Constitution.

Having found that it was quite possible to remove the right of appeal to the Privy Council with a simple majority in both Houses of Parliament, their lordships could have severed - and, in fact, did consider severing the issues. This is to say, their lordships could have ruled that the amendments sought to have the Privy Council removed could proceed, while the amendments to establish the CCJ be deemed null and void.

Had their lordships found this a viable alternative, this would have resulted in the Court of Appeal of Jamaica being the final court of appeal of Jamaica pending the establishment of the CCJ in the dictated manner. However, their lordships concluded that the issue of the Privy Council was so inextricably interlinked with the issue of the establishment of the CCJ that the issues could not be

severed, and, therefore, the Privy Council should remain our final court of appeal pending us getting our house in order.

Plea to the

opposition senators

So here we are today. The three Bills will be tabled in the Senate on Friday. Methinks this time in history presents a golden opportunity for someone on the opposition side to show his mettle to arise as a modern-day messiah.

I do not share the view that it would be political suicide for an opposition senator to break ranks. Rather, I think it may raise the political profile of some

persons who seem to have been banished to the backwaters of the political wilderness. Our current prime minister, interestingly, in the said 2004 (the year when these three Bills were originally passed into law), while she was vice-president of the PNP, abstained from voting with her party against an opposition motion pertaining to the fire services.

Many regarded Simpson Miller's abstention as a populist move, but her iconoclastic action - or lack thereof - enlarged her public appeal, made her appear strong and a woman of the people who would not put party considerations above the poor firemen.

Her party was outraged, but Simpson Miller proved that, at the end of the day, it was popularity with the populace that tended to dictate party leadership, and by extension, winning of elections.

I have known Senator Arthur Williams for many years. He is a gentle giant, a solid lawyer, and a gentleman. We are acquaintances, not friends. Nevertheless, I will be so bold as to advise him thus:

"Arthur, I do not think, given your recent shenanigans with court processes against your party leader, that you have much of a future in the hierarchy of the JLP. You are a lawyer, and I hope you agree with me that local-grown judges are every bit as learned and competent as their English counterparts.

"There is no shame in supporting the CCJ, Arthur. Even the Jamaica Bar Association now seems to support the notion, and I am sure you remember, Arthur, that the Bar was party to the court process that led to the passage of the original bills being declared null and void back in 2004. After all, Arthur, I imagine your issue was really with the process, right? Not with the substance of the law? Well thanks to the Privy Council ruling in 2004, the process issue is now behind us and the substance issue is at hand. Will you break ranks, Arthur? Do you remember the words of Panton J in your Court of Appeal decision? Let me remind you:

"Good governance requires mature deliberation on legislative measures. Each Senator is expected to give conscientious thought to every topic that comes before the Senate for discussion and vote. Every member of the Senate takes an oath to be faithful and bear true allegiance to Jamaica, to uphold and defend the Constitution and the laws of Jamaica, and to conscientiously and impartially discharge his or her responsibilities to the people of Jamaica. The responsibilities are 'to the people of Jamaica', not to an individual, not to a club, group or section of Jamaica. In view of that oath, it would be against the spirit of the Constitution if one were to bind one's conscience otherwise."

This could well be your moment, Arthur, why not see it?

Dr Tufton now

Senator Tufton, you used to be a star in the JLP, you were seen as a party leader in the making, you are young, smart, good-looking, eloquent, and of the 'red-man' stock to boot! But alas, there was an Andrew Holness as well, with fairly similar attributes as you. Andrew had one thing going for him, though: He was liked by the populace.

Gleaner poll after poll showed him ranking highest on the opposition side in the eyes of John Public, and that, I think, Chris, is what gave him the edge against you.

Unfortunately, two bulls could not rule in one pen, though, Chris, and you were ousted, your resignation from the Senate demanded, and when that was not forthcoming,

you were made to suffer the indignity of being "resigned!"

Chris, this may be your moment, too, to show your mettle, to show strength of character, to make your own populist move. Your party may curse you, but once your appeal with the populace remains strong, 'dem ago tired fi see you face'.

Dr Nigel Clarke, your replacement, I believe, in the Senate, was highly regarded during his short stint and was generally accepted as being more than a political hack, as being a thinker, a principled politician. At no time was this more evident than when he broke ranks with his party brethren and voted in favour of the Urban Renewal Tax Incentive Act. Will history remember you thus, Chris? As a leader? A man prepared to do what he considers best for the people even if unpopular with his own party?

Senator Tavares-Finson, you are a lawyer, too, and while I think it would do your own political aspirations a world of good to be the one to break ranks, I think it would be more likely for it to snow in hell than for you to break your current tight bonds with the leader, so let me move on.

Senator Malahoo-Forte, you should also be very au fait with the issues. After all, you, too, are an attorney-at-law and a former RM at that, so it crossed my mind to appeal to you, too, however, I dismissed the thought as you are still somewhat of a newbie and I do not see you having the stomach for that fight just yet. So, Arthur, Chris ... my bet remains on you two.

- Shena Stubbs is an attorney-at-law and legal commentator.

Send feedback to: Email: shena.stubbs@gleanerjm.com

Twitter:@shenastubbs