Delroy Chuck
AT EVERY opportunity, government spokespersons strongly argue against a referendum to determine the will of the Jamaican people in the matter of replacing the Judicial Committee of the Privy Council (JCPC) with the Caribbean Court of Justice (CCJ), as the final court of appeal.
The Prime Minister, in his most passionate and persuasive eloquence, said in Parliament, there would be no referendum. The Hon. Anthony Hylton, Minister of Foreign Trade, considers Norman Manley's decision to hold a referendum, to decide Jamaica's fate in the West Indian Federation, an error that would not be repeated.
Hon. A.J. Nicholson QC, Attorney-General, dismisses the need for a referendum as he intends to mould public opinion to support the CCJ. His strategy escapes me; as if he succeeds in moulding public opinion in favour of the CCJ then he and the Government should not be afraid of holding a referendum for the people to decide. On the other hand, maybe he doubts his and the Government's ability to persuade the people and dare not take the chance of knowing. In any event, why is there this reluctance to let the people decide? For a Government that mockingly puts people first, it is a strange reluctance!
The Government fears the referendum will be politicised, and gives this argument as a reason for not having a referendum. Certainly, it is a condemnation of our political process to believe the people cannot think and that everything put to them is or will be politicised. Is it that political tribalism has been so successfully ingrained, embedded and entrenched that our people lack understanding, have become political fanatics and will follow a partisan political path even to their detriment or disadvantage? I think the argument is unworthy, scornful and belittling of our people's intellect. Why can't we trust the intelligence and integrity of our people to make decisions that are right, good and just, and in their best interest?
The tendency of our leaders to distrust the judgement and understanding of our people is wrong. The Government believes people can make up their minds at election time but are unable to decide complex political issues that could be put to them in a referendum. Democracy and progress demand openness and transparency and the trust of our people to make decisions that affect their lives. If we believe in democracy, then let the people decide. Surely, it is not beyond the intelligence of the ordinary man to decide if he wants to remove the JCPC at this time. Why the arrogance of our leaders to feel and believe that they alone have the wisdom and insight to know what is right and good for the people?
In truth, the strongest argument against the CCJ is that the people do not trust the Government to do what is right and just. It works both ways. The Government feels the people may not decide as it wishes and for reasons best known to itself is intent on having the CCJ replace the JCPC as soon as possible. The people feel that, on the agenda of urgent issues, the CCJ is just not a priority. I simply cannot understand why the Government sees the urgency to fix an institution, the final court of appeal, that is not broken and is working, when there are so many broken institutions, including areas of the justice system, that need urgent attention. Indeed, this is one of the arguments proffered by the Jamaican Bar Association that the Government needs to put the present machinery of justice into a proper working order before it adds another costly layer of appeal it cannot now afford.
On any worthwhile consideration, we must let the people decide. Appealing to the JCPC is a constitutional right provided in Section 110 of our Constitution to the people of Jamaica. It is a fact that a simple majority in Parliament and the Senate can change it. However, it would be wrong that this constitutional right should be denied or abrogated without the consensus and agreement of the people. Constitutional provisions should not be so easily changed, especially when the change abrogates desirable, even if perceived and remote, rights and benefits.
To be sure, I can accept that if the Constitution sought to increase the rights and benefits of the Jamaican people, such as reducing the voting age to 18 or making citizens of foreigners married to Jamaican women, or remove burdens and detriments, or where there is no dispute, a simple majority may suffice as no one would really object.
Where, however, contentious issues are raised and the structure of government is concerned, a broad consensus is definitely desirable.
The final court of appeal is a part of the constitutional arrangement of governance and I believe that once we start to rearrange the structure of government then we must have special majorities in Parliament or preferably consult the people.
In fact, no Parliament should have the power and authority to shape and rearrange the structure of government as it sees fit. Constitutional government demands a regular consultation with the people, as the constitution, at least in theory, represents the law of the people and it is the people that must decide what laws restrain its government.
I strongly believe that we should move more towards a constitutional democracy in which the people are supreme and away from a parliamentary democracy in which the elected representative or the politicians are supreme.
The people, in the form of a referendum, should decide disputed and significant changes in our Constitution. The Caribbean Court of Justice and the removal of the Privy Council are matters of dispute and of substance and the change should not be determined in Parliament by one side that temporarily enjoys the majority support. For sustainability, certainty and due process, inter alia, let the people decide.
Delroy Chuck is an attorney-at-law and Opposition Member of Parliament. He can be contacted by e-mail at Delchuck@hotmail.com.
