The referendum question

A.J. Nicholson, Contributor

The research reveals that, apart from St Vincent and the Grenadines' recent venture into that arena, no former British colony has held a referendum to sever its ties with the 19th century-created Judicial Committee of the Privy Council. That is a matter which those who advocate for that exercise to take place in Jamaica must contemplate. The Canadian authorities struggled with the prospect for decades, and resisted. Why? On the basis of two time-honoured factors!

First, they were persuaded that issues relating to their judicial system, particularly its apex, should not become mired in the political hustings and the manipulation of the campaign trail. The judicial system should not, at any time, be unprotected from a concentration of the slings and arrows of the practice of politics; and a referendum - essentially a political exercise - can never guarantee that cover.

Dominant force

As the authorities in Kingstown came to realise, unless there is consensus among the political parties on the question that the people must answer by their vote, the partisan political hand will become the dominant force in the effort. So, the Canadians, wisely, were not prepared to struggle against the inevitable, even in the situation of their party-political system never, perhaps, having ever reached the tribal proportions of some other countries within the Commonwealth.

Jamaica's present prime minister, Bruce Golding, is of the opposite view: he does not see how such momentous issues could be resolved without "going to the people" in a referendum. As history shows, that route has been stoutly shunned, because of the inescapable damage to the system of the administration of justice.

So, on the wrong foot once again, he sought to make light of the suggestion of the leader of the Opposition - and, with respect, the only prudent suggestion, were there to be such a referendum - that the political parties approach that exercise, singing the same tune.

A second powerful factor has, over these several decades, kept the referendum route at bay for countries seeking to end appeals to the Judicial Committee. It is that, a referendum ought not to be held on a question on which the state is not empowered to enforce the mandate that is given. If the answer that the people give, by their vote, is that appeals to that court be maintained, it is not within the competence of the authorities to enforce that mandate. That power resides in Whitehall.

And, in the current circumstances, this piercing truth assumes even larger proportions. For, the president of the Supreme Court in London, Lord Phillips, in admonishing us to utilise the Court that we have created for ourselves in the Caribbean, starkly reminded us that we remain with their court, on their terms.

It boils down to this, according to my practical-joker friend: Your family lives in the country and you have been living at your grandaunt's home in the Corporate Area, because you work in Kingston. One day, she suggests that it would be best that you make other arrangements, since she now needs the space to take care of her own expanding requirements.

Scared of leaving

She went further: you have invested in a house in the Corporate Area and some of your family members have even already moved into that house, and they have no complaints. Others have refused, because they are scared of leaving their accustomed place of abode.

She added that you are welcome to stay, but you must now set up living quarters in the garage, since there really is no other space. In other words, you may remain, on her terms. It would clearly make not one ounce of difference, were you to gather your family members to take a vote as to whether you should remain in your grandaunt's home.

Our prime minister says that, after the president of the Supreme Court delivered his clear message, the United Kingdom authorities advised that we could remain with the Judicial Committee for as long as we wished. He must have forgotten the remainder of Lord Phillips' statement that, in the new arrangement, judges of a lower status to that of their Supreme Court judges will now be included in the membership to hear appeals from Jamaica and the Caribbean.

Like the grandaunt, the British authorities are telling us that our accommodation in the Judicial Committee is not on the same footing that had previously obtained; and that raises profound constitutional questions for us.

When these territories, including Jamaica, decided at Independence that they would retain appeals to the Judicial Committee, it must certainly have been on the footing that those appeals would be heard by judges who serve at the third tier of the process, the House of Lords, as had been the case for well over a century.

It is true that there was the option of judges from other Commonwealth jurisdictions, who were members of Her Majesty's Privy Council, being invited to sit with members of the Judicial Committee, for specific and strategic reasons. But, was it ever contemplated that judges who serve in courts below the highest court in the United Kingdom would hear appeals from these jurisdictions, regardless of any other status that those judges may enjoy?

Could it really have been within our contemplation that, under our Independence constitutional arrangements, judges of the English Court of Appeal could come to be empowered to hear appeals from the Jamaican Court of Appeal? Well, constitutional issues apart, if we are content to abide that awkward situation, we must be prepared to acknowledge that the near 50 years of Independence have come to mean very little to us, as a people.

Politically painless

For time-tested reasons, therefore, the architects of our Constitution concluded that our severance from the Judicial Committee, in time, should be politically painless, particularly since we are in no position to control whether we remain there, and on what terms. For Jamaica, then, to leap from the constitutionally provided calm of a required majority vote of the membership of each House into the inescapable firestorm of a referendum, is to display the kind of wisdom that has eluded Canada, Barbados, Australia, Belize, South Africa, New Zealand and all other Commonwealth countries, until St. Vincent and the Grenadines.

There is the unexplained exception of two of our CARICOM member states, where there is the constitutional requirement for a referendum to be held to sever ties with the Judicial Committee. St Vincent and the Grenadines is one of them. A referendum has been held and the vote was: to retain appeals to the Judicial Committee.

That vote means retaining appeals to that body, on terms that the British authorities decide - matters which the government at Kingstown is in no position to influence.

So, the questions arise: What has that referendum vote accomplished? And, is the Judicial Committee the same body, in substance, to which the new nation opted to subscribe when they adopted their Independence constitution?

Perhaps, we could be further assisted by the law schools, as to whether the new judicial arrangements in the United Kingdom have affected the constitutional compact in St Vincent and the Grenadines to the extent that the Government cannot fulfil its side of the bargain concerning final appeals, and which it must guarantee to the people.

The idea of a referendum to decide the issue of a final court of appeal has not found fertile soil anywhere in Commonwealth constitutional and political arrangements.

The argument that the location of "the apex of our judicial system" is so important that it should be subjected to the people in a referendum is to 'rush in where angels fear to tread'.

In that same vein, it is to be keenly noted that the Judicial Committee itself did not rule that a referendum is required for Jamaica's full accession to a new judicial apex, the Caribbean Court of Justice, as was stated in a Gleaner editorial of Friday, December 24. They ruled that the legislation should be passed by the procedure that would be adopted for amending an entrenched provision of our constitution, that is, by a two-thirds majority vote in each House of Parliament.

So, the bottom line for the advocates of the referendum route to internalise is the unyielding stand taken against such a procedure by those countries which have ended appeals to the venerable British institution. All of those countries, at Independence, determined that no referendum was required to patriate their executive and their legislative arms of government, entities which have proved themselves able to withstand the buffeting of partisan political practice.

The most vulnerable of these three arms - the judiciary - must, even more so, never be exposed to the wrangling of the political arena. Already, the proposition begins with the manipulative frame of 'why are you afraid to trust the people?' The conventional wisdom has always been that, this is not a question of a fear of trusting the people; it is, rather, the inevitable outcome of irreparable damage to the system of the administration of justice, by exposure to partisan political exploitation. The Opposition Leader's suggestion, therefore, provides food for deep thought.

A.J. Nicholson is Opposition spokesman on justice. Feedback may be sent to columns@gleanerjm.com.