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Prime Minister P. J. Patterson, left, greets Opposition leader Edward Seaga at a recent function. Other members of the Government and the opposition Jamaica Labour Party look on.
Shena Stubbs, Contributor
I SUSPECT the Prime Minister might have shot himself in the foot last week when he announced his intentions to push the idea of Republic status and the Caribbean Court of Justice in the same breath.
When I heard Mr. Patterson on radio asserting that the country would be moving to republican status in this term and that that the Caribbean Court of Justice was a must, I immediately thought to myself, "What does the Caribbean Court of Justice have to do with Republican status?" Chances are, had the Prime Minister in his passionate address to young supporters at the Jamaica Conference Centre on September 18 not linked the two together, the question would not have come to mind.
Apparently, I was not alone in wondering at the nexus as "Motty" Perkins on his day-time talk show the next day also wondered at the nexus and in vintage "Motty" fashion went on to posit a few views of his own. Delroy Chuck on one of the evening talk show programmes also stated that he was overseas when he heard the Prime Minister's pronouncement and immediately thought that this was the Prime Minister's way of getting around the constitutional problems facing the Government with regard to the implementation of the Caribbean Court of Justice.
FANCIFUL
True to his word, the Prime Minister did go on, at the People's National Party (PNP) Annual Conference on the weekend to expand on his earlier pronouncement. Not only was Republican status squarely on the agenda but it would happen in a mere 18 months and the support of the Jamaica Labour Party (JLP) was anticipated.
The response to the Prime Minister's comment was fast and it has been furious. Prominent members of the Jamaica Labour Party such as Bruce Golding and Delroy Chuck were quick to point out that an 18-month time table was at best, fanciful. Speculations were also rife that the Prime Minister's accelerated plans for Republican status was somehow tied in to his administration's stated desire to implement the Caribbean Court of Justice (CCJ) without a referendum. Of course, Senator Kes Miller has stated that there WILL be a referendum just not on the issue of whether the electorate wants the CCJ but rather on whether the electorate wants the Caribbean Court of Justice to be entrenched or not.
The question that rises from all this bantering of esteemed politicians and legal minds is whether it is indeed necessary to establish a Republican system of Government to ensure the creation, pre-eminence and continuity of the CCJ? The People's National Party has stated that this is not the case, their Leader in his pronouncement of the party's intention with regard to Republic status had not been motivated by a hidden agenda to secure the establishment of the CCJ before he demits office. The Jamaica Labour Party, on the other hand, has stated that this might very well be the case. The Prime Minister has now realised that it is not enough to establish the CCJ by abolishing certain provisions of the Constitution, that his administration cannot go it alone and that in fact, there may very well be the need for a referendum.
THE CONSTITUTION AND THE CARIBBEAN COURT OF JUSTICE
To establish a Caribbean Court of Justice, the Government finds itself faced with several legal obstacles, chief amongst which seems to be section 110 of the Constitution. In a nutshell, section 110 of the Constitution confers the right to appeal to Her Majesty in Council in certain instances either as of right or with the permission of the Court of Appeal. Subsection 3 of section 110 provides as follows:
"Nothing in this section shall affect any right of Her Majesty to grant special leave to appeal from decisions of the Court of Appeal to Her Majesty in Council in any civil or criminal matter." [emphasis mine]
While the other legal obstacles faced by the Government may be surmountable by a majority vote in parliament, s. 110, on the other hand, cannot be surmounted quite as easily. The interpretation of section 110, in so far as our politicians, at the least, are concerned, appears to turn on which party one is allied to. And, by extension, the interpretation of section 110 provides the nexus, if any, between the Government's desire for an accelerated Republican status and the establishment of the Caribbean Court of Justice. To this end, it is instructive to look at both of the two major parties position on the issue.
THE PNP'S POSITION:
The PNP has denied that the Prime Minister's desire to see Jamaica gain Republican status within 18 months is linked to an even greater desire on his part to realise the establishment of the Caribbean Court of Justice under his watch. The two proposals they say are independent of each other but constitute a part of the whole constitutional package.
The PNP has repeatedly pointed out that section 110 is not entrenched. That is, it does not require a referendum to amend or repeal it, nor does it require a two-thirds majority vote in Parliament. The logical extension, if we follow the PNP reasoning, is that if the offending section is removed by a majority vote in Parliament, they would be able to establish the CCJ without the holding of a referendum. The objective, the PNP maintains, is not just to remove section 110, but it is to replace it with wording which will, among other things, abolish all rights of appeal to the Judicial Committee of the Privy Council whether by leave, as of right, or by special leave.
Because no special vote is required to abolish section 110 and thereby to establish the CCJ, it stands to reason, therefore, that the Prime Minister's desire to achieve Republican status in eighteen months is unrelated to his desire to see to the establishment of the CCJ. To substantiate their case, the PNP administration points to Barbados which they say is now enacting legislation to establish the CCJ without going the route of referendum and without disturbing the monarchy.
They also point to Trinidad which has had republican status for some time now but maintains the right of appeal to the Privy Council.
The two jurisdictions are particularly instructive to the debate, they maintain, because they derive their independence from similar Orders in Council as the Jamaican Order. Attorney-General A.J. Nicholson has also relied on the examples of Canada and Australia as cases in point where the right to petition the Head of State, Her Majesty, or the Privy Council for special leave to appeal has been abolished.
THE JLP INTERPRETATION
The JLP on the other hand points out that section 110 does not purport to establish the Judicial Committee of the Privy Council (the Privy Council) nor the right to appeal thereto, it simply enhances an already existing right. The fact that section 110 does not create the right is borne out by the fact that sections 106 and 108 (sic) of the Constitution which appear before section 110 both make references to the Judicial Committee of the Privy Council.
For the JLP's Delroy Chuck with whom Senator David Coore concurred, this clearly establishes that the constitution recognises the existence of the Privy Council outside of sections 106, 108 and 110. Had the wording of section 110 established the Privy Council, wouldn't this have preceded the references in sections 106 and 108? Even if section 110 was repealed, the special right of appeal to the Privy Council with the permission of the Queen created by subsection 3 would remain. Removing section 110, therefore, will not solve the problem of abolishing the right to approach the Queen for special leave to appeal.
The right of appeal referred to in subsection 3 is a common law right and is preserved by Section 4 of the Jamaica (Constitution) Order in Council, 1962 which is the very Order to which the Constitution of Jamaica is attached in the form of a Second Schedule.
Section 4 provides:
"All laws which are in force in Jamaican immediately before the appointed day shall (subject to amendment or repeal by the authority having power to amend or repeal any such law) continue in force on and after that day..."
The logical extension of this, therefore, the JLP maintains is that once the Queen remains as Head of State any citizen can approach her and petition her to appeal to the Privy Council. Removing the Queen, therefore, now assumes a double importance for the PNP. It has to get rid of the Queen to establish the CCJ and they have to get rid of the Queen to have a republic system of Government. Removing the Queen as Head of State at this time, the JLP seems to be suggesting, could be a kind of subterfuge aimed at removing the Queen on a ballot that has been proven to appeal to the masses but which would ultimately have the effect of paving the road for the CCJ.
The PNP has flatly rejected the conclusions of the JLP and the suggestion of subterfuge in pushing ahead with the Republican style of government at this stage. No doubt this is a debate that will continue back and forth for a while and in fact by the time this article is printed, Attorney-General Nicholson will have responded to Mr. Seaga's interpretation of the constitutional provisions and the PNP's motives or lack thereof.
I look forward to hearing from him as I continue to ponder the implications of Mr. Patterson's words at the Jamaica Conference centre on September 18, 2003.
Shena P. Stubbs is an attorney-at-law.
