CCJ bills - another decade (Part 1)

Minister Peter Bunting, in his concise 'Contribution to CCJ Debate' in Parliament on December 2, 2014, "hit the nail right between the eyes" on the real issue at hand in this CCJ debate when he pointed to "the legacy of distrust and dependency".

That two remaining symbols of our lack of sovereignty persist, firmly intact after 52 years of independence, is troubling. That is:

i. The fact that the British queen remains Jamaica's head of state; and

ii. That Her Majesty in Council (who by convention accepts the 'advice' of the Judicial Committee of the Privy Council (Privy Council) remains our final court of appeal.

The removal of the sovereign may, in fact, require a referendum, but in the case to engage us with the CCJ, the more informed view is that this can be done if you have the requisite majorities within the Lower and Upper Houses of Parliament.

The vote in the Parliament on the three CCJ bills has been postponed to May 12. The positions of our two main political parties seem largely fixed. The sitting Government will vote in support en bloc, as they did more than 10 years ago when three previous CCJ bills were before the House, which bills were struck down at the level of the Privy Council in Independent Jamaica Council for Human Rights (1998) Limited and Others v Syringa Marshall-Burnett and the Attorney General of Jamaica.

The current CCJ bills have been laid in a manner that addresses the ruling of the Privy Council, which confirms the requirement that the bill(s) be tabled and passed in each House by at least a two-thirds majority, after the passage of certain minimum timelines between introduction and passing.

From all appearances, the Opposition will continue to insist that the issue be put to the people of Jamaica in the form of a referendum and will not support the passage of the bills. Unless one opposition senator crosses the floor and votes in favour, the bills cannot pass with the requisite two-thirds majority in the Upper House. This is the result of the design of our independence Constitution with a Senate consisting of 21 members - 13 appointed by the governing party and eight appointed by the Opposition. Whether at least one senator appointed by the Opposition will cross the floor is left to be seen.

As matters stand, there must be doubt that any sitting opposition senator would want to be embroiled in accusations and public odium within opposition circles, which are likely to follow crossing the floor on this matter. But I could be surprised. I would be concerned if that was the manner in which we are to be engaged in the court, as it would not be the wholesome start I would want for my highest court.

On the barest analysis, this matter of a Senate structure premised on a single member crossing the floor was not a good design, if the intent was ensuring wider support for certain fundamental constitutional changes to occur. Its birth, 52 years ago, was from another era when this may have been felt to be sufficient when the focus was on replacing colonial representatives with Jamaicans nominated by the prime minister and leader of the Opposition and later to have a wider pool from which to draw ministers with skills not available in the Lower House. Does the existing structure of a single member crossing the floor offer adequate or sufficient protection with respect to fundamental constitutional change?

The question that arises is whether on this issue, a sitting opposition senator who may be personally in support of the CCJ bills should cross the floor and vote against the party position or given the fundamental nature of the matter and the major divergence between the party's position and their own view on the matter, should he or she permit the party position to prevail in the circumstances?

The reasoning of the courts in the recent Senate resignation letters case, at first instance and on appeal, suggests such a senator should have the right to vote their conscience in keeping with their independent view of the matter before them in the interest of the people. That is, that they should have some independence and the right to apply it. But is the issue this simple and is it realistic to expect a senator to cross the floor and vote against his or her party on fundamental matters? Unfortunately, the ultimate result of 'independent voting', along these lines without some structural adjustment to the Senate and the relative numbers, is likely to be that (in the future) only persons who are confirmed, certified, card-carrying party sycophants will ever be appointed senators. This is not desirable.

My understanding is that a 1990s constitutional commission made a recommendation to enlarge the Senate with space for independent members to be appointed but that this has not gathered momentum, though former Prime Minister P.J. Patterson made a small start in appointing two independent senators. This may need to be revisited if we ever hope to have senators voting outside the default automatic support structure we have.

Failure to achieve two thirds majority support

Should the bills not receive the two-thirds majority support in the Upper House, my understanding is that the bills can still pass if the matter is put to a referendum, as provided for under the Constitution. However, that type of referendum requires a two-thirds majority support, which, in our tribal divide, is unlikely to be had unless perhaps, the Opposition campaigned on a basis that their supporters had a free hand to vote their conscience. This is unlikely. In my view, it is even more unlikely that the requisite level of support would be had under this type of referendum.

If the Opposition agrees that a simple majority support for the CCJ on a referendum would be accepted, there is a chance that that level of support could be had. While we have heard the word 'referendum' repeatedly used by the Opposition, there has been no specificity concerning what type of referendum is contemplated. Is it one requiring special majorities or is it one in which they agree to accept the result of simple majority support?

If the Government cannot get the support of a simple majority for the measure, I am unable to see the basis on which there can be complaint, however great our individual desire to engage in the CCJ's appellate jurisdiction and rid ourselves of our colonial masters in the form of the Privy Council. What would be the basis of that complaint? That the people are ignorant and don't understand what is good for them, but are sensible enough to elect politicians who do and who will act in their best interest?

Section 110

It is contended by the Government side that Jamaica's Independence Act of 1962, in mirroring Canada's Statute of Westminster of 1931, recognises the sovereign right of the Jamaican Parliament by ordinary legislation (Section 110) to abolish all access for appeals to the Privy Council. The opportunity is never missed by proponents to mention that we can abolish the right of appeal to the Privy Council by ordinary legislation, whether they were appeals as of right, or appeals by leave (i.e., permission) of the Court of Appeal or by special leave directly to Her Majesty (the Privy Council).

I have always had a difficulty with the assumption that gives rise to the result that a court of appeal within a structure that has a further tier of appeal (the Privy Council) offers the same level of protection as a court of appeal, which without warning becomes the final court by default when that final tier disappears and is not replaced. A final court is never bound by its own decisions or that of any other court and it would be undesirable for this to occur by accident, which is a theoretical possibility.

I sincerely hope that when the dust settles after the three CCJ bills are voted on in April that we do not end up abolishing the right of appeal to the Privy Council, which arguably only requires a simple majority in either House, but fail to engage Jamaica in the final appellate jurisdiction of the CCJ as no opposition senator crosses the floor and there is no successful referendum. That is, left without the Privy Council and without the CCJ? Up the creek without a paddle. That would be a grave misstep.

See Part Two next Sunday.

- Donovan Jackson is an attorney-at-law. Email feedback to columns@gleanerjm.com and djacksonj@nsdco.com.