No case for CCJ referendum
Published:Sunday | August 26, 2012 | 12:00 AM
Matondo Mukulu, GUEST COLUMNIST
The issue of Jamaica's slow but inevitable march towards the Caribbean Court of Justice (CCJ) is now back on the agenda as the Jamaica Labour Party (JLP) has repeated its call for a referendum, despite the fact that as a matter of principle, the party does not disagree that the time has come for the people of this region to have autonomy in their judicial affairs.
Is there much, or any, credit in the JLP's position?
The framers of our Constitution (sadly, all men), in their contextual wisdom, took the view that the nation lacked the judicial expertise to form a final appellate court. Surely, it would seem that they were correct, though, of course, the example of Guyana does stand as a testament to what small states can do, if they are courageous enough.
But now we are at that juncture where, unlike, say, a New Zealand at the time of its de-linking from the Privy Council, which never had the benefit of having the proposed replacement court being operational, we have the CCJ fully functional. Therefore, the conversation that we should be having really is not about if we should be joining this pan-Caribbean court but about truly educating our people about the path on which their leaders want to take them.
The leaders of both major parties should commit themselves to a massive public education drive where people become sufficiently informed about the CCJ, including operation costs and the costs of filing an appeal, as these are the very matters that will affect and determine access to the court.
Further, the discussion must answer the question that the JLP is grappling with: Is there a constitutional requirement for a referendum? If we were to believe the JLP (and some other groups), there is a sort of presumption that the Constitution requires this seemingly costly process, even though those who we have elected say they agree.
My reading of the Constitution tells me that there is no need for a referendum. In that, the last time the issue of severance from the Privy Council was discussed by the law lords, it was made clear that the parliamentary procedure requires more than a simple majority vote in both Houses. I might not have agreed with that decision, but both parties have signed off on the procedure. But to date, I am yet to see anything in the Constitution that suggests that a referendum is mandatory.
a vote is a voice
In fact, when he spoke in Parliament on the issue in May 2003, Delroy Chuck, the JLP's spokesman on justice, was quite clear that there was no constitutional requirement for a referendum, but he seems to have anchored his call for a referendum on notions of democracy. He made his argument then by asserting that the then executive distrusted the people, but he showed scant regard to the fact that our democracy is so organised that we have a representative democracy - we elect people to lead and make decisions for us.
So to answer the referendum question directly: it is not mandatory. To me, this then shifts the burden on the men and women from Belmont Road to persuade the country as to why, after 50 years of political evolution, we need to "enjoy" the self-inflicted indignity of having to pay for and get a visa to access our own court.
The JLP needs to come out of the comfort of the Parliament and get engaged with the people of this country.
But let us not get carried away, as I do acknowledge that the judges who make up the Privy Council are men and women with tremendous experience as either academics and practitioners, and we have surely benefited from this. There is a larger pool of lawyers in the United Kingdom (UK) from which the Bench is selected, and there is an obvious benefit as the English Bar emphasises specialisation.
However, if we have the CCJ, we will not the poorer be, as the judges of the CCJ are selected from across the Commonwealth and not just the Caribbean. This is not just in theory but in fact, as currently among the judges who hear appeals are persons who practised law outside the Caribbean.
But we must be careful that as we seek to have judges who bring experience from outside the Caribbean, we do not mask a deeper feeling of insecurity whereby we need a certain splashing of phenotype to legitimise the people's court. Having the benefit of practitioners from other jurisdictions is important, as it gives our court the benefit of diversity in law, which, perhaps, has not been developed in the Caribbean as yet.
Then I turn to the issue of access. As part of the public education drive, if I were a member of the public, I would wish to know: will I have to travel outside Jamaica to have my case heard? There is nothing that suggests that the court cannot be an itinerant one, meaning it can sit in Jamaica if the case is from Jamaica. Of course, there is no need for a CARICOM national to obtain a visa to access the court even if it's not sitting in his or her country.
access wanting
For those of us who are in love with the idea of access to justice, this is a point that must be repeated at every opportunity, as there can be no point in having a court where a majority of Jamaicans who interface with the justice system have limited or no prospect of accessing.
I am always amazed when I hear people who claim to be committed to justice argue for retention of the Privy Council. That's an inconsistent position to have, not because the Privy Council is without quality judges, but because if a potential claimant or criminal defendant cannot access the fountain that has its base in London, justice is compromised procedurally.
So turning to the original question posed: Is the JLP correct that we must have a referendum? Absolutely not, as the Constitution does not require it, and it would appear to me that the correct approach, since both parties agree that we need to sever ties with the Privy Council, is for an aggressive public education drive nationwide.
That would be a more tangible form of democratisation than the touted referendum, as the education process is less susceptible to the misrepresentation and 'cass-cass' that is a feature of our electoral referendum experience. Furthermore, the JLP has not convinced me as to the merits of having a costly referendum on an issue on which both parties agree, especially when we are facing a serious lack of resources in the public sector.
To paraphrase Delroy Chuck in his 2003 speech in Gordon House: don't ram that cost down the people's throat.
Matondo Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.
The issue of Jamaica's slow but inevitable march towards the Caribbean Court of Justice (CCJ) is now back on the agenda as the Jamaica Labour Party (JLP) has repeated its call for a referendum, despite the fact that as a matter of principle, the party does not disagree that the time has come for the people of this region to have autonomy in their judicial affairs.
Is there much, or any, credit in the JLP's position?
The framers of our Constitution (sadly, all men), in their contextual wisdom, took the view that the nation lacked the judicial expertise to form a final appellate court. Surely, it would seem that they were correct, though, of course, the example of Guyana does stand as a testament to what small states can do, if they are courageous enough.
But now we are at that juncture where, unlike, say, a New Zealand at the time of its de-linking from the Privy Council, which never had the benefit of having the proposed replacement court being operational, we have the CCJ fully functional. Therefore, the conversation that we should be having really is not about if we should be joining this pan-Caribbean court but about truly educating our people about the path on which their leaders want to take them.
The leaders of both major parties should commit themselves to a massive public education drive where people become sufficiently informed about the CCJ, including operation costs and the costs of filing an appeal, as these are the very matters that will affect and determine access to the court.
Further, the discussion must answer the question that the JLP is grappling with: Is there a constitutional requirement for a referendum? If we were to believe the JLP (and some other groups), there is a sort of presumption that the Constitution requires this seemingly costly process, even though those who we have elected say they agree.
My reading of the Constitution tells me that there is no need for a referendum. In that, the last time the issue of severance from the Privy Council was discussed by the law lords, it was made clear that the parliamentary procedure requires more than a simple majority vote in both Houses. I might not have agreed with that decision, but both parties have signed off on the procedure. But to date, I am yet to see anything in the Constitution that suggests that a referendum is mandatory.
a vote is a voice
In fact, when he spoke in Parliament on the issue in May 2003, Delroy Chuck, the JLP's spokesman on justice, was quite clear that there was no constitutional requirement for a referendum, but he seems to have anchored his call for a referendum on notions of democracy. He made his argument then by asserting that the then executive distrusted the people, but he showed scant regard to the fact that our democracy is so organised that we have a representative democracy - we elect people to lead and make decisions for us.
So to answer the referendum question directly: it is not mandatory. To me, this then shifts the burden on the men and women from Belmont Road to persuade the country as to why, after 50 years of political evolution, we need to "enjoy" the self-inflicted indignity of having to pay for and get a visa to access our own court.
The JLP needs to come out of the comfort of the Parliament and get engaged with the people of this country.
But let us not get carried away, as I do acknowledge that the judges who make up the Privy Council are men and women with tremendous experience as either academics and practitioners, and we have surely benefited from this. There is a larger pool of lawyers in the United Kingdom (UK) from which the Bench is selected, and there is an obvious benefit as the English Bar emphasises specialisation.
However, if we have the CCJ, we will not the poorer be, as the judges of the CCJ are selected from across the Commonwealth and not just the Caribbean. This is not just in theory but in fact, as currently among the judges who hear appeals are persons who practised law outside the Caribbean.
But we must be careful that as we seek to have judges who bring experience from outside the Caribbean, we do not mask a deeper feeling of insecurity whereby we need a certain splashing of phenotype to legitimise the people's court. Having the benefit of practitioners from other jurisdictions is important, as it gives our court the benefit of diversity in law, which, perhaps, has not been developed in the Caribbean as yet.
Then I turn to the issue of access. As part of the public education drive, if I were a member of the public, I would wish to know: will I have to travel outside Jamaica to have my case heard? There is nothing that suggests that the court cannot be an itinerant one, meaning it can sit in Jamaica if the case is from Jamaica. Of course, there is no need for a CARICOM national to obtain a visa to access the court even if it's not sitting in his or her country.
access wanting
For those of us who are in love with the idea of access to justice, this is a point that must be repeated at every opportunity, as there can be no point in having a court where a majority of Jamaicans who interface with the justice system have limited or no prospect of accessing.
I am always amazed when I hear people who claim to be committed to justice argue for retention of the Privy Council. That's an inconsistent position to have, not because the Privy Council is without quality judges, but because if a potential claimant or criminal defendant cannot access the fountain that has its base in London, justice is compromised procedurally.
So turning to the original question posed: Is the JLP correct that we must have a referendum? Absolutely not, as the Constitution does not require it, and it would appear to me that the correct approach, since both parties agree that we need to sever ties with the Privy Council, is for an aggressive public education drive nationwide.
That would be a more tangible form of democratisation than the touted referendum, as the education process is less susceptible to the misrepresentation and 'cass-cass' that is a feature of our electoral referendum experience. Furthermore, the JLP has not convinced me as to the merits of having a costly referendum on an issue on which both parties agree, especially when we are facing a serious lack of resources in the public sector.
To paraphrase Delroy Chuck in his 2003 speech in Gordon House: don't ram that cost down the people's throat.
Matondo Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.