A.J. Nicholson | Atonement or further standstill?

In recent times, an expressive saying has developed among the populace that ‘Jamaica is not a country, it is a place’. They say that too many of the usual attributes of a country are absent from this land of ours.

When questioned, they explain that the sentiment has several sources springing, first, from the manner in which the present government approaches its responsibilities, in particular, the cavalier contempt with which it treats with issues that would benefit our less privileged citizens.

For example, for near 200 years since slavery was abolished, generations of Jamaicans whose forebears emerged from the canepiece have never had access to their highest court of justice in the United Kingdom. The government now establishes a Constitutional Reform Committee, presenting an agenda which makes no mention whatsoever of seeking to have that 200-year-old blatant injustice redressed.

Affirming that heartless attitude, a government representative recently disdainfully declared on public radio that this item, the equalising initiative to be pursued to bring immediate benefit to our deprived people, is nowhere within the foreseeable contemplation of the administration.

The people of Jamaica, including the non-government members of the Reform Committee, should regard that proposed agenda at this juncture of the reform process as demonstrably insulting, a disturbing display of disrespect.

But this is just the latest in a stream of uncaring indiscretions and ringing missteps of the governing party along Jamaica’s journey towards closing the circle of independence. Urgent atonement is surely needed!

INTERLOCKING REASONS

There are two interlocking reasons why this is an appropriate juncture for that required atonement to be pursued. First, the constitutional reform process was derailed by the Jamaica Labour Party led by Edward Seaga, and the leadership of the process is now, for the first time, in their hands.

Second, the leadership of that party has left an indelible stain on Jamaica’s legal and cultural landscape by corruptly conspiring to commit an egregious breach of the Constitution ensuring that unhindered access to the highest court would continue to remain available only to the privileged class.

The minister, the substantive chairperson of the Reform Committee, has never apologised to the people of Jamaica, and is now in the ideal position from which the sincerest of atonements on behalf of the Jamaica Labour Party must be launched to facilitate a restart on the reform journey.

The acceptance by Parliament in 1995 of the report of the David Coore-led Joint Select Committee on Constitutional and Electoral Reform provided the framework and the platform from which the march towards full sovereignty would proceed.

There was to be a new Charter of Rights to replace Chapter III of the Independence Constitution; Jamaica was to abandon appeals to the Privy Council and accede to the Caribbean Court of Appeal, when established; and Jamaica was to become a republic with its own indigenous head of state within a ceremonial presidential-type system of government.

Led by Seaga, the party, without any plausible reason, withdrew from the mature consensus that had existed for decades for Jamaica to be part of a final regional court, a policy initiative that they themselves had introduced and cemented. The strange breakaway was bolstered by their insistence that a referendum be held, determined to override the route declared by the Privy Council flowing from a ruling sought by themselves and others.

That shocking unprecedented step, totally foreign to democratic rule-of-law principles practised within the Westminster-style system of government, coming directly out of the authoritarian playbook, calls for a meaningful turnaround and sincere atonement. For, following the entrenchment of the Charter of Fundamental Rights and Freedoms in 2011, the reform movement effectively came to a standstill.

TWO FORCES

There are two decisive powerful forces that should drive Jamaica’s push from the British court into the embrace of the regional court. On the one hand, we have been advised persistently by the Privy Council judges that we are not welcome in the monarch’s court. Shamelessly, the Jamaica Labour Party (JLP) leadership have deafened their ears, utterly dismissive of the warnings of the advisers to the monarch, our head of state.

On the other hand, there is the beckoning welcoming embrace of the internationally acclaimed accessible Caribbean Court of Justice whose operations and upkeep Jamaica assists in funding.

The JLP is unimpressed and has been the single voice of dissent from anywhere against extolling the virtues and integrity of the regional court, with their former leader, Edward Seaga, denigrating the accepted gold-standard institution as “dispensing a lesser breed of justice”.

The most stunningly reckless act by the JLP leadership along the journey towards full sovereignty has been the brazen assault on the Constitution concerning membership of the legislative arm of government, the unconscionable aim of which would maintain the opportunity of access to the court of last resort available only to the privileged. The question is: Has there been a greater atrocity since the gravely immoral system of haves and have nots was set firmly in place at Emancipation?

That unimaginable conspiratorial deed, struck down by the courts in 2015, will forever be regarded as a monumental show of disrespect to the Jamaica Constitution; the minister who is co-chair of the Reform Committee was a part of this.

She was soon elevated to the position of Jamaica’s attorney general in early 2016, and the record sadly shows that, during her tenure as principal legal adviser to the Government, the courts consistently had to declare legislative measures and administrative steps that were introduced to be unconstitutional.

As attorney general, she famously asserted that, in the fight against crime, entrenched fundamental rights of citizens may have to be abridged, a position from which she has never resiled. Notwithstanding, she came to be placed at the head of a newly created legal and constitutional affairs ministry and is now positioned to guide the deliberations of the Reform Committee.

NO SURPRISE

There is no surprise that the agenda presented for the committee’s consideration is bereft of any reference to transitioning to the accessible regional court. Over the years, certainly since the passing of their former leader, Edward Seaga, who usually pronounced upon the party’s position, the leadership has rarely even mentioned the subject, publicly maintaining a sepulchral silence.

For the constitutional affairs minister, the imposition of a travel visa to enter the United Kingdom challenges the dignity of Jamaicans because our head of state resides there, but not a word about that imposition being a hindrance, some say an unconstitutional stumbling block, in the way of access to justice for the less privileged.

This governing party, having so far got their way in the constitutional reform process, have now gone way too far. They want all Jamaica, including His Majesty’s loyal Opposition which holds the handle in this initiative, to sanction their plan to usher Jamaica into a space occupied by Trinidad and Tobago, by withdrawing from the monarchy to become a republic, while unashamedly continuing to overstay our welcome at the monarch’s court.

Coming to the table with that posture, the minister is rendered tailor-made to push for sincere atonement on behalf of the Jamaica Labour Party and of herself for being utterly disrespectful of the Constitution and being downright callous about the interests of our too-long deprived citizens.

That atonement must include an upfront decision to regularise the intolerable situation that obtains at the apex of the judicial system, to give some assurance that closing the circle of independence is, in truth, a genuine goal.

- A.J. Nicholson is a former minister of justice. Send feedback to columns@gleanerjm.com