KINGSTON, Jamaica, October 8, 2022 - A constructive query to be included in the ongoing conversation on the constitutional reform process, at home and in the diaspora, is whether there is any avenue open to the Opposition People's National Party (PNP) to influence a thoughtful movement forward and an inclusive, acceptable outcome for the two remaining watershed issues.
The conversation has undoubtedly been sharpened by the passing of Her Majesty Queen Elizabeth II with the trajectory now trending strongly towards the Government and the parliamentary Opposition, urged on by some elements of civil society, agreeing together for the country to quickly move on to republican status, without more.
Should that be allowed to come to pass, would the PNP be able to escape being held accountable for having simply acquiesced in that earth-shaking slapdown of the small man's hope, over generations, to be allowed to enjoy the privilege of unimpeded access to justice from his court of last resort, and allied matters?
The evidence is compelling. This present Jamaica Labour Party (JLP) leadership have set their face against Jamaica fully embracing the Caribbean Court of Justice (CCJ), and in this they are supported by some influential members of society. Indeed, the government ministers do not address, or even bother to mention, the subject. Inferentially, for them the die is cast.
An open question inevitably arises: Does that sound the death knell of this initiative on behalf of our less privileged citizens? Is persistent advocacy in support from senior members of our judiciary, for example, and others, programmed to prove to be of no avail?
We call to mind that, In this transformation exercise, the Opposition shares with the Government certain co-equal constitutional and governance roles and responsibilities. So that, in the pursuit of an acceptable, fruitful outcome, it is quite appropriate, and necessary, to examine whether there is any positive guide to be gleaned from a reflection on a legitimate route open to the PNP Opposition to play their part in that catastrophe being averted.
When Prime Minister Bruce Golding was about to lead the debate on the Charter of Rights bill in the House of Representatives in 2011, there were three main outstanding issues to be brought to closure: the Charter itself; regularising the intolerable situation regarding our final appeal court; and moving to become a republic. For closure to be brought to each, the Constitution has in essence mandated the collaboration of both political parties.
Whenever the Constitution requires the cooperation of Government and Opposition for the passage of legislation by special majority vote, the Opposition holds the handle; if they withhold their support, there can be no movement forward. The ultimate power of that handle resides in the 13 to 8 membership split in the Senate in which, for example, there cannot be a successful 2/3 majority vote without the support of at least one of the 8 opposition senators.
That constitutional veto power is meant to be used as a protective shield and guard to ward off any catastrophe that would flow from unjust policy proposals, and not as a sword of political partisanship to cut away just and caring legislative initiatives introduced for the benefit of our people, in particular, our less privileged and marginalized citizens.
Those principles were not lost on Prime Minister Golding as he opened the debate on the Charter. His party had, before he assumed the leadership position, broken ranks and inexplicably projected stern opposition to the CCJ initiative, calling for a referendum on the issue.
Golding, in deliberate fashion, proceeded to outline to his parliamentary colleagues the futility of any attempt at moving forward when that kind of stumbling-block position is assumed by one of the political parties.
The PNP Opposition had declined utilising the veto power in the form of advising the government that, unless they agreed to lend their support for our challenged majority to be afforded access to justice from the accessible CCJ, passage of the Charter would not be guaranteed.
The PNP Opposition harboured misgivings and voiced the fear that members of civil society, who were at that time for their own reason by no means enthused about the CCJ, would join with the JLP to pillory the party of denying our people new and improved rights, triggering a possible withholding of votes in the imminent general election.
Yet, they entertained the hope that their own cooperation concerning the Charter vote would serve as motivation for the JLP and their fellow travellers to later support the call for the longed-for empowerment of the denied majority.
As was astonishingly revealed in time, it was shortly after the PNP Opposition's vote in support of the Charter that the conspiracy was formed relating to the Senate membership constitutional rules directed at driving their senators into unpardonable compromise of their oaths.
Today, two main reform issues are outstanding and is it destined that the Opposition PNP must meekly ride along with the JLP government's effort to move away from our absentee head of state, without reference to the issue of access to justice denied to the vast majority of our citizens since Emancipation, almost 200 years ago?
Simply put, at this juncture on the "shadow boxing" journey engaged in by the two political parties, according to esteemed Attorney-at-Law Hugh Small, what would be the response of the JLP leadership and their fellow travellers at this historic fork should the PNP Opposition move to bring matters to a head by an open public pronouncement and recommendation in the following terms:
"We in the People's National Party have long held the view that it is past time for Jamaica, the first of the British Caribbean territories to gain political independence, to delink from the monarchy, and we hold ourselves duty bound to co-operate meaningfully with the government in that endeavour to make for a favourable and acceptable outcome.
"There are two connected burning issues, however, that cannot be side-stepped by the authorities, including ourselves: First, there is the unjust attempt at the disregard of a matter of extraordinary importance to our less privileged citizens concerning access to one of our courts. That kind of discriminatory neglect is not sustainable in a free and democratic society!
"Plus, there is the unaddressed absolutely shameful matter which touches and concerns all our nationals, and which is germane to this conversation. Jamaican nationals are the only members of humankind across all cultures who, uniquely and awkwardly, are required to obtain a visa to enter and transit the country where one of their courts of justice, the highest, is located, and where their head of state is domiciled..
"Faced with those woeful considerations, we declare that we could not in good conscience lend our cooperation to begin the preparation for change of the head of state in the absence of the tabling of the enabling CCJ bills in the House of Representatives by the government, accompanied by their solemn public pledge to support legislative approval of those bills.
"We repeat! We wholeheartedly endorse the Prime Minister's undertaking to the visiting royal that Jamaica will move on from the British sovereign as head of state. It is surely agreed, however, that that move, both necessary and highly symbolic, brings no tangible benefit to those of our citizens, the majority, who have emerged from the canepiece. Moving on to the accessible, internationally-endorsed CCJ certainly does!
"Why, then, should there be a wedge preventing Jamaicans from enjoying the experience of both outcomes in equal measure? Are the two issues not umbilically tied to the monarchy? Are there not enough positive elements to the completion of these two landmark processes that will make for an acceptable win-win for all sides: to serve as footprints on our cultural and educational landscape, and as cornerstones in the creation of the just society?
"Anchored by principle in the pursuit of these historic milestones, we are simply faithfully following the visionary path laid down from the first decade of our Independence, over 50 years ago in 1970, by Attorney General Victor Grant, and Prime Minister Hugh Lawson Shearer and his cabinet, of which Bruce Golding's predecessor as JLP leader, Edward Seaga, was a member, with Golding being a member of the later Seaga cabinet which, the record shows, followed through and cemented that caring policy position in 1988".
Such an inclusive shield and guardrail put in place by the Opposition PNP, protective in particular of the interests of the less empowered among us, would expressly open the door, presenting the JLP leader, Andrew Holness, with three golden opportunities:
First, to join the leaders before him whose cabinets had projected the embrace of the regional court to replace the Privy Council as Jamaica's firm policy position.
Second, for the beginning of a new dawn, removing matters concerning access to justice out of the reach of impediments, such as visa requirement, as atonement is sought for the unfortunate breach of the Constitution under his leadership.
And Third, to grasp this prudent option of making use of an irresistible, orderly and mature route to discharge the undertaking that he had given to the emissary of the monarch.
How else is this aspect of Jamaica's history since the 1655 British capture to be brought to acceptable closure other than by our people moving in one accord in this transformation from the monarchy, and from the monarch's court, admonished as we have been for years by the monarch's advisors, the judges, to do - a position from which there is no record of the monarch ever publicly dissenting?
And too, is that not how the catastrophe, and further shadow boxing and quarrel, would be averted?
Any lessons learnt? Well, all are obliged to watch and listen intently, from within and from the diaspora too, as to the approach that will be adopted by the leadership of the party of Michael "Joshua" Manley!