Editorial | Need Gov’t stand on CCJ

That a surprising amount of attention is being paid in Kingston to last week’s appointment of Justice Winston Anderson to act as president of the Caribbean Court of Justice (CCJ) is understandable.

Some people probably view with a sense of irony what, otherwise, is a routine development that’s in accordance with the rules of the court.

The agreement establishing the court says that in the absence of the president, as is the case of the incumbent, Adrian Saunders, the president’s duties are to be “performed by the Judge of the Court who is most senior according to the date of his appointment”. Which happens to be Justice Anderson, who has been a member of the court since June 2010. It also happens that Justice Anderson is Jamaican.

His stint as acting president of the court coincides with a new round of debate over whether Jamaica should accede to the CCJ’s civil and criminal divisions, making it the island’s apex court – a position strongly supported by this newspaper.

The Government’s position on the CCJ is critical to Jamaica’s stalled constitutional reform process, including transforming the island from a monarchy to a republic. This, however, is a question to which the Andrew Holness administration has provided no clear answer, despite its promise nearly a year ago, finally, to do so “in short order”.

Given the Opposition People’s National Party’s (PNP) insistence that moving to a republic must be a single package that includes ditching of the UK-based Privy Council as Jamaica’s final court, Prime Minister Holness must declare his government’s stance on the matter, and say what possibilities he sees for compromise.

In doing so, Mr Holness, in addition to any political calculus that drives his decision, has to be pragmatic about two related matters.

The first is that constitutional reform, or any implementation thereof, is a dead issue until after next year’s general election. For even if there were a compromise now, there won’t be sufficient time to complete all the requirements of the Constitution to end the monarchy and make Jamaica a republic before Jamaicans have to vote by next September.

Next, and more importantly, there is an absence of trust between the parties, which makes it unlikely that the Opposition will agree to a sequencing that starts with making the island a republic, then followed by delinking from the Privy Council. The PNP clearly fears that if it acquiesces and goes first with the republic, the governing Jamaica Labour Party (JLP) won’t necessarily support acceding to the CCJ. Or it would likely insist on taking the matter to an unwinnable referendum.

In the absence of any movement on this issue, the JLP probably hopes to make the PNP pay a political price at the elections by casting the Opposition as the party that blocked Jamaica’s move to a republic, thereby maintaining King Charles III as Jamaica’s head of state.

There are, however, two notable variables to contemplate on this front.

The last opinion poll on the CCJ showed that six in 10 Jamaicans were in favour of joining the court. The second is the recent observation by the former JLP leader and prime minister, Bruce Golding. However you spin the constitutional reform question, Mr Golding said at a recent symposium, the CCJ remains “the elephant in the room”. And nothing can happen in that regard without consensus on this issue.

But, Mr Golding said, “that elephant has grown fatter and more boisterous by the way in which the debate about it has been conducted”.

By this, Mr Golding refers to the critical levers concerning constitutional reform that neither side can manipulate on its own.

AMENDING DEEPLY ENTRENCHED CLAUSES

Changing from the monarchy to a republic, with a ceremonial head of state – on which there has long been bipartisan agreement – requires amending deeply entrenched clauses in the Constitution. This means that the passage of the bills have to be by two-thirds majorities in both chambers of Parliament.

While that can easily happen in the House where the Government has 78 per cent of the 63 members, the in-built barrier in the Senate demands that at least one opposition member of that chamber would have to vote with the Government for the bill to carry.

After that, the amendment still has to be approved in a referendum, a high bar to scale if one side doesn’t explicitly, or enthusiastically encourages its supporters to back the vote.

Neither is a super-majority or a referendum required to remove the Privy Council as Jamaica’s final court. However, as the judges in the UK ruled when a PNP administration attempted to replace that court with the CCJ, the new court had to be entrenched if it is to be a superior court to Jamaica’s existing Court of Appeal. To do this would require a two-thirds majority in both chambers of Parliament.

The JLP, in opposition, consistently withheld support from any move to make the CCJ Jamaica’s final court. That question, Mr Holness suggested, should be settled in a referendum.

The upshot, on both fronts, has been political stalemate.

The logic for ditching the Privy Council as an essential part of the process of ending the monarchy and closing the circle on Jamaica’s colonial past is unimpeachable.

But as Mr Golding argued, it can’t happen in the absence of consensus, or merely by adversarial posturing.

The PNP has staked out its position. We know where they stand.

It is now important to know where the Government/JLP stands, and on what it might be willing to compromise. That is essential, if, as Mr Golding put it, there is to be “compromise, not coercion”.