A.J. Nicholson | A covenant with the people

The following is openly presented for consideration by the Honourable Attorney General, including, in his capacity as a member of the Constitutional Reform Committee.

Three issues, among others, are still trending: There is the continuing strong commentary touching and concerning ‘whether those salaries should be rolled back’; there is the to-ing and fro-ing between the legislators and the Integrity Commission; and the Constitutional Reform Committee (CRC) is in place.

At the root of all three issues is a contemplation of the covenant that must exist between the legislators and the Jamaican people, and which has to be operational so as to keep the ship of state on even keel. That covenant, significantly, is also referred to as a contract between employees and employers.

The employees undertake, swear, to do all within their power to enhance the well-being of their employer, to uplift the standards and elevate the integrity of the society. By the terms of this contract, awesome power comes to reside in the hands of the employees, and the manner in which that power is exercised by them should ultimately define how their stewardship comes to be judged.

Those powers concentrated in the employees have caused this one-of-a-kind contract to be referred to as a covenant between governors and governed, the leaders and the people. And when that covenant is pushed into the background by the leaders – the employee governors – the ship of state becomes unsteady.

At the heart of the analysis at home and in the diaspora relating to the jolting parliamentary announcement of the salary increase by the finance minister is a keen consideration of whether the increase is deserved.

QUESTIONS ARISE

Certain questions, of necessity, arise: Is the covenant between the governors and the governed being fairly executed? Is performance of the contract bringing smiles to the faces on both sides? Are the employees ‘making it’ about their employers’ needs or more about themselves and their own interests? There is complaint about the difficulty in carrying out a proper assessment on account of the failure of the Chief Servant to produce a long-promised job description for the employee legislators.

There are some benefits which legislators alone in the entire society have the power to bring home to the people. One such highly meaningful privilege that also speaks to the integrity of the society, denied to generations for 190 years, ever since the Emancipation journey began in 1833, is access to justice in their highest court of law.

But, consider this! Some weeks ago, a seasoned employee legislator declared in unthinking, bragging fashion on public radio to his long suffering army of employers across Jamaica that, movement to reverse that deprivation is nowhere to be found on the foreseeable agenda of the top leadership of the legislators. Never mind that, to be present in that court, both employer and employee are obliged first to obtain a travel visa.

That is the kind of misguided, pompous display that inevitably cause questions to be raised about the quid pro quo – the value – the performance evidence to match the unusual salary increase. What normally follows any attempt at such questioning is the toxic, crass refrain of “bad mind” flowing from the leadership of bristling employee legislators.

The attorney general would surely be concerned, for that type of uncaring, cavalier exhibition leaves the Jamaica ship of state unsteady.

An unacceptable outcome of the disappointing disagreement between the legislators and the Integrity Commission is the refusal of the legislators to sign the Code of Conduct. They fail to grasp the fact that, signing of the Code speaks to a covenant between themselves and the people, even if the Code is drafted, and overseen, by members of the Commission.

Respectfully, a legislator’s beef with the Commission ought to have nothing to do with signing and adherence to the principles embodied in the Code of Conduct. Complaints about the attitude of the judge or the policeman or dissatisfaction with the composition of the privileges committee cannot lead to short-changing the employer.

The self-obsession of the employee, however otherwise empowered, cannot be paramount, putting their personal interests above their employers’ business. That amounts to going against an unbending term of the covenant.

ENJOINS LEGISLATORS

The Code of Conduct essentially enjoins the legislators, inter alia, to use their enormous powers to enhance the rights, interests, privileges and benefits of the people in a fair and just manner as their governors.

Access to justice at all levels, in particular for the less privileged class, must be in the forefront of the contemplation of the employee legislators in whose hands alone lies the power for that to be guaranteed. The Attorney General would, moreover, recognise the right as a constitutional requirement in pursuit of the creation of the just society.

Former legislator Ronald Thwaites has asserted that, “(I)t should be evident to all but the true believers that the constitutional reform process is flopping”. That candid assessment can hardly be refuted, unsurprisingly coming about so quickly. Conceptualisation of the CRC and, worse, the blinkered fashioning of its projected agenda had no wings.

It is submitted that the high profile character of the CRC’s membership makes it imperative that there be early manifest reversal and redemption. The Attorney General would surely agree that the six decades old Independent Jamaican state cannot be seen to have established a Constitutional Reform Committee which hurriedly came to be part of a process that is regarded as flopping!

It is irrefutable public knowledge that Jamaicans have, over the years, been consistently advised in no uncertain terms by the highest authority in the United Kingdom that they are not welcome in their court of last resort, the Judicial Committee of the Privy Council.

It is irrefutable public knowledge that the internationally acclaimed Caribbean Court of Justice, to which Jamaica has long made its financial contribution, awaits the embrace of Jamaica’s legislators to rescue the people, their employers, from the uniquely shame-filled, discriminatory situation that has too long obtained at the apex of their judicial system.

It is also irrefutable that no one would be so delusional as to expect, and suggest, that Jamaica could, at any time within reason, manage to establish a local final court that could attain to the required standard of global acceptance such as is enjoyed by the British Privy Council and the regional Caribbean Court of Justice.

DEEP UNCERTAINTY

Without question, circumstances have conspired to throw into deep uncertainty the timing of any tabling of the referendum bill to begin the process of ditching the monarchy.

In the face of that incontrovertible span of general public knowledge, and more, what is it that could militate against the CRC issuing an interim report, recommending that the Chief Servant, under the terms of the covenant between the governors and the governed, dutifully table in the Parliament the required bills to begin the process of moving away from the Privy Council to accede to the full jurisdiction of the Caribbean Court of Justice?

Were such urgings of the CRC to be agreed to, would not that engaging decision make for a welcome point of departure juxtaposed with the trending issues?

Jamaica moving away from the Great Imperial Court, finally leaving that anachronism behind, travelling on the road toward full sovereignty, would be inspiring news, a positive historic talking point, bringing smiles to faces at home, in the region, in the diaspora and beyond; long overdue benefit delivered to forever deprived employers, providing a charitable example of good leaders wanting good things for everyone.

Demonstrably, for issuing forth such a required developmental urging, history would be kind to the endeavours of the Constitutional Reform Committee, propelled by the Attorney General’s full appreciation that what could by no means be left unaddressed is the open characterisation of Jamaica’s “constitutional reform process”, from which he himself is inseparable, as “flopping”.

To prevent him from being astride two horses moving in opposite directions, the hand of Attorney General would most likely also have been immeasurably strengthened by another position that he holds, as leader of the Bar. At their annual general meeting at the weekend, the Jamaican Bar Association would, again, have considered a Motion calling for the Privy Council to be replaced by the regional Court.

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