There are reasonable arguments both for and against replacing the Judicial Committee of the Privy Council as Jamaica’s final appellate court with a Caribbean Court of Justice. But even many who favour such a move in principle think the process is being handled in a very unsatisfactory manner. The entire matter seems not to have been properly thought out. Have estimates been made of how much it would cost to establish and maintain such a court? How will it be funded? What will happen if one of the signatory countries to such a court withdraws? Will it be a case like the West Indies Federation of “Ten minus one equals zero”? If the CCJ thus falls apart, will the Jamaican Supreme Court be our final court of appeal?

The nation should surely have answers to all these questions before any decision on the matter is made. There was supposed to be “an extensive public education process” on the issue. But funding for this has not even been put in place even though it is now May and our government plans to sign a commitment to the CCJ in July. Is this any way to handle arguably the single greatest change to the constitutional rights of the Jamaican people since independence?

Our constitution permits Parliament to abolish the Privy Council as the nation’s final appellate court. But it does not allow it to establish a court that can reverse the decisions of the local court of appeal. This at any rate is the unanimous view of the Jamaican Bar Association, an avowedly non-political grouping of some of the nation’s finest legal minds. And in the words of the association’s president Mr. Derrick Jones “Any court established other than with due constitutional authority can be removed by the Jamaican Supreme Court”.  Which could conceivably lead to the absurdity of our Supreme Court challenging the Caribbean Court’s authority if it tried to overrule a decision of the local appeal court.

Doubtless legal opinions on this matter will vary, and any final ruling will inevitably boil down to one interpretation of the law against another. But if respected legal minds disagree about the constitutional legality of a court before it is established, how can we expect its judgements to be respected unconditionally? If a Caribbean Court is to be accorded the same esteem as the Privy Council it must be set up in an atmosphere of absolute legal clarity. “What gone bad a morning can’t come good a evening.”

The only way of completely dispersing all legalistic fog is to consult the people of Jamaica by way of referendum. Some say the nation cannot afford the cost of a referendum and should focus on more pressing matters. But this argument would apply to the entire subject of replacing the Privy Council with a Caribbean Court. If we can’t afford to set up such a court properly then we can’t afford to set it up at all.

The rule of law is not an ivory tower intellectual issue, for every democracy relies on the judiciary to hold the executive accountable under the law and to enforce the constitution. In no country has the judiciary been immune from political efforts to override its decisions. And as Professor Patchett of the Organization of Caribbean Bar Associations pointed out ”If you move away from the Privy Council and what you put in place fails, the devastating effect of failure must be anticipated.”

The Prime Minister’s outright refusal to even consider a referendum is difficult to understand. Here is an issue where the precepts of Jefferson and Machiavelli both lead to the same conclusion, for the democratically principled thing to do is also the cynically calculating one. The government has everything to win and nothing to lose by holding a referendum. By emphatically obeying not only the letter of the law but its spirit, Mr. Patterson would unequivocally prove wrong those critics who claim he wants to establish a Caribbean Court primarily because it would increase the power of the executive. Indeed many would view a referendum as a symbolic gesture of the Prime Minister’s explicit intent to ensure that the Caribbean Court remains completely free of political interference.

The actual calling of a referendum would in the long run be far more important than the result. Our politicians sometimes act as if taking the high road in political matters always costs them votes. But the Commission of Enquiry into the Montego Bay street people affair certainly increased Mr. Patterson’s popularity in many quarters, and his party has increased its lead in the polls since then. The enquiry may not have been the only cause, but at the very least it has done him no harm. Nor could a Privy Council referendum.

If the people voted yes, the issue would be settled once and for all. Even the strongest Privy Council proponents admit that if the Jamaican people no longer want it, it must go. And frankly it would be odds on Jamaicans approving the change. For one thing our alarmingly high murder rate has produced strong pro-hanging sentiments here. Anything which increases the chances of hanging being resumed, as the establishment of the Caribbean Court would, will almost certainly gain the electorate’s favour. I myself am opposed in principle to the death penalty and consider state execution an affront to the dictates of civilized humanity. But all citizens of a democracy must accept the fact that if the majority of the population feel strongly enough about an issue for a long enough period, their wishes must ultimately prevail.

But even in the unlikely event that Jamaicans voted against abolishing the Privy Council it would only be a postponement of the inevitable. Sooner or later we must cut our apron string ties with Britain. Even the monarchy must go one day. But why force the matter? Let these things take place when there is a broad consensus among the Jamaican people. Evolution is always better than revolution.

No doubt Mr. Patterson fears suffering the same fate as Norman Manley who, though not legally required to do so, called a referendum on the West Indies Federation in 1961 and lost. But Mr. Patterson’s situation is far different from Mr. Manley’s. In 1961 the PNP faced a vibrant JLP opposition with an extremely popular leader. Today the JLP is hopelessly divided, utterly bereft of credibility, and downright unelectable. Almost no one considers it a viable alternative government. This virtual lack of opposition has made Mr. Patterson undoubtedly the most powerful Prime Minister in Jamaican history. And power is only attractive than when exercised with restraint. (Comments? e-mail changkob@hotmail.com)