Privy Council 'politricks'

Gordon Robinson, Contributor

On December 21, 2010, Parliament learned of a seismic shift in Government's position on the subject of Privy Council appeals. It came with a subtly executed political coup d'etat that caught the Opposition flat footed. By conceding that the abolition of appeals to the Privy Council was a given but that its replacement by the Caribbean Court of Justice (CCJ) was not, the prime minister seized the progressive high ground on this issue from the People's National Party (PNP).

In one fell swoop, the Jamaica Labour Party (JLP), by pointing out that we should consider the alternative of a strictly Jamaican, third-tier court, has swept the PNP from the lofty nationalist perch upon which it had long been comfortably ensconced and, with exquisite irony, cast it as the party calling for Jamaica's final appellate process to be controlled by a foreign court.

The history of this popular political football game isn't usually presented accurately or in its entirety. It began in 1962 with our Independence Constitution written for us by politicians and lawyers without electoral consultation. This fundamental historical fact renders the recently expressed concern for referenda hilarious. All concerned with the writing of that supreme law were united that the Privy Council, like all other colonial institutions, needed abolishing.

The practical problem facing our Constitutional framers was the absence of an immediate replacement. For cen-turies, British law had been our law; British precedent had been quoted as Gospel; and decisions of the United Kingdom-based Privy Council were of binding legal authority on our 'lower' courts. In the short run, it was decided to hang onto the Privy Council until we could build the Jamaican jurisprudence, infrastructure and judicial experience required to replace that final vestige of our colonial past.

But, in so doing, and because it was clearly understood that this was a temporary measure, the Privy Council was not entrenched in our Independence Constitution. It was the original authors' deliberate measure to permit any Government with a ready replacement to terminate appeals to the Privy Council by a simple parliamentary majority. Afterwards, routine became habit (as is our wont) and it took almost three decades for us to begin talking about abolition of Privy Council appeals.

Finally, a Jamaican prime minister reminded CARICOM of the anachronism that the Privy Council had become and placed the necessity to find a local-based replacement on CARICOM's agenda. No, it wasn't Michael Manley, that self-styled champion of self-reliance. This happened in 1988 and the Jamaican Prime Minister was one Edward Philip George Seaga.

Political football

A year later, Jamaicans voted Seaga out of office and the kicking of this particular political football began. Suddenly, the Privy Council was the only place from whence a pure stream of justice flowed. We weren't ready. Our Resident Magistrate's courts were in shambles. Magistrates were falling through floorboards. How on earth could we ever consider replacing the Privy Council by a court run by (OMG!) regional or local judges? The method of appointment of CCJ judges was too politically controlled (this one particularly hypocritical as the method was changed in 1988-89 upon a motion put to CARICOM by Seaga himself). And the blathering went on and on ad nauseam until Jamaican inferiority became a mantra.

Finally, a change of political leadership appears to have resulted in light finally shining in the swamp of backwardness. Perhaps the Government has been shamed into this volte face by Patrick Robinson's recent public reprimand. Maybe its recent public relations debacles combined with an upcoming general election have concentrated its collective mind wonderfully. Whatever the genesis of the shift, it's a stroke of political genius. But also, it's the right thing to do.

For no apparent reason other than it wasn't their idea, the PNP has scrambled around to find arguments against this alternative. After much screaming, scheming and scrambling, the PNP has settled on the argument that we're already committed financially to the CCJ. It's argued that a Jamaican third tier would now be a waste of money. Accordingly, the PNP's 'progressive' agenda now excludes a fully localised system of appeals in favour of a foreign final court. That rumble you heard the other day was no earthquake. It was Joshua rolling in his grave.

My own decades long support for the CCJ has always been predicated on it being a stepping stone to our own court and an acceptable immediate compromise due to the urgent necessity of abolishing privy council appeals. The CCJ was always preferable to the status quo of continued bowing and scraping for legal crumbs at the old colonial table but never the ideal. Eventually, every independent nation must handle its own national affairs, including its legal affairs.

Arrant nonsense

It's arrant nonsense born of immense insecurity to suggest that we must never bring the final, local decision-making process on Jamaican lawsuits to Jamaica. And money is a non-issue. Governments, including PNP governments, never before complained about money spent to the CCJ while we scorned its services. Why now? In the late 1950s, we spent a fortune on Federation but didn't bat an economic eyelash when we summarily withdrew in 1961.

We must think this regional integration issue through. Why are we blinded by our financial support for the CCJ? The immediate abolition of Privy Council appeals is our urgent priority. We can stop the final appellate court gap with the CCJ while considering a Jamaican final tier. Then, when it occurs to us that, to better cope with the global financial maelstrom that's currently swamping our small individual economies, we must convert CARICOM into a new, improved Federation, Jamaica can set up its own final appellate court for appeals from lawsuits on purely local issues. Then, the CCJ can hear appeals from Jamaica's 'final' court when issues of federal concern require resolution if the CCJ certifies the issue to be of general regional importance.

Up to now, we've been doing what men frequently call "pussyfooting around" the problem. Of course, that's just another 19th century American invention rumoured to have originated as a comment that cats are stealthy and sneaky, but which has been embraced by male chauvinists everywhere like the story we're told as children that the stork brings babies. But that's poppycock! Now we know it's poppycock, why can't women accuse us of cockyfooting around the problem?

Ladies and Gentlemen of Parliament, where there's a will there's a way. Is there a real will? Or are we still politricking, pussyfooting (or cockyfooting) around?

Gordon Robinson is an attorney-at-law. Feedback may be sent to columns@gleanerjm.com.