The Caribbean Court of Justice debate has been an excellent exercise in the democratic exchange of ideas. Every conceivable point of view has been expressed in the media, and anyone interested has been able to contribute to the discussion via radio talk shows or newspaper letters. But then Jamaicans and West Indians are used to nothing less. The idea of our governments making important changes without extensive public discussion is a completely alien concept.

Indeed outside of Western Europe and Anglo-Saxonia (Britain, America, Canada, Australia and New Zealand) the English speaking Caribbean is undoubtedly the most democratic collection of nations in the world. Except for Grenada, every West Indian nation has enjoyed continuous democratic rule since becoming independent. And we all have regular multiparty elections, a free press, and an independent judiciary.

Every West Indian nation has also kept the Privy Council as its court of final appeal. Yet of the 38 Commonwealth countries that have dispensed with the Privy Council’s services only Australia, Canada and India are fully democratic. Which suggests that the stability which the Privy Council gave to our legal systems contributed significantly to the wonderful West Indian democratic record.

A quote from Thomas Sowell’s “Conquest and Cultures” seems apposite here

“As the British government became “the mother of parliaments”, so the British legal system became a model for other countries… Not all former British colonies established or preserved British governmental structures or principles or the freedom based on them. But the line of demarcation between those that did and those that did not largely coincided with the line between free people and those living under various forms of despotism.

While many other countries copied British systems of law and government, those that succeeded in creating similarly free governments were largely those that came from the same tradition – the United States, Canada, Australia, New Zealand. For the historical experiences that were distilled into powerful traditions were essential to the functioning of the legal and political institutions themselves. While these institutions could be copied by anyone, the history and traditions behind them could not be synthesized, and it was these intangibles that made the tangible institutions and structures work.”

When we became independent our leaders rightly focused not on full rights for all, but on making sure we did not go the way of Ghana or the Belgian Congo. CCJ supporters argue – and perhaps correctly so - that after 39 years of democratic stability, is it time for all Jamaicans to be given not only theoretical but practical legal equality by having a more accessible court of last resort.

After all justice cannot be pure when only a small percentage of the population have access to it. Those who say only murderers and rich men suing their ex-wives have access to the Privy Council are not far wrong. It costs over three million dollars to have a case heard before the Privy Council. Meaning that in 99% of cases the Jamaican Supreme Court is our de facto court of final appeal.

“If it ain’t broke don’t fix it” argue some. But successful nations adapt to changing circumstances. Britain is history’s most durable democracy precisely because it has always adjusted the system in response to new needs.

Of course there is an emotional side to the CCJ argument. For to many the Privy Council is a vestige of British colonial rule. Now black persons in 20^th century colonial Jamaica may not have been as harshly oppressed as South African or even American blacks. But they were still subject to “petty” apartheid like all white bank clerks, West Indian captains and swimming pools. It may not be mere coincidence that the “CCJ now” brigade are largely black while most of the “keep the Privy Council” gang are white and brown persons who probably never suffered colonial humiliations. Everyone wants to see the memories of wrongs they suffered if not avenged at least eradicated. It is easier to forgive than to forget.

But is Jamaica and Caricom “ready” to have a regional judicial body serve as its court of last resort? Will such a court be free of political interference? If our governments listen to all points of view, plan for all possible scenarios, and seek the approval of the people, they will in effect have answered questions about our democratic maturity with a convincing yes.

And hopefully this is what is happening. At the start some governments, as governments are wont to do, seemed to be trying to use the CCJ issue to strengthen their authority. But the forceful public reaction showed them once more that Jamaicans and West Indians will not stand by like sheep when their rights are threatened. And as the Jamaican Bar Association president Derek Jones points out, many government positions have been changed in the face of objections. For instance the commission to appoint the CCJ judges was originally to include nine persons, seven of whom would be political appointees. Now it will have eleven people only three of whom will have political connections. Of course ideally they should be all independent. And not all objections have been addressed.

But a consensus seems to be developing. And according to the Attorney General the important point is that the Privy Council must not be jettisoned unless the people of Jamaica are sure that all constitutional requirements have been followed, proper financial arrangements have been made, and legislative safeguards have been put in place to secure the integrity of the CCJ. He feels the signing must be followed by a thorough education campaign. Then the legislative procedures should be put in place. Then a referendum should be held on whether the nation wishes to replace the Privy Council as its final court of appeal with the CCJ. Then and only then could Jamaica withdraw from the Privy Council and the CCJ become functional. In his words “Any government that thinks it has all the answers cannot be a good government. The answers must lie in civil society”.

If this schedule is followed surely all those who consider themselves liberal democrats – whether pro or con the CCJ - will be satisfied.

Yet in the end no government of this country can afford not to consult with the populace. If the Privy Council right of appeal is abolished without this happening and the majority of Jamaicans do not agree with the decision, they will certainly vote that government out the next time around. One way or another, our people will have the last word. changkob@hotmail.com