THE high stakes game of move counter-move between the ruling People’s National Party (PNP) and the Opposition Jamaica Labour Party (JLP), over whether Jamaica should become a republic, has pitted the only two remaining framers of the Jamaican Constitution against each other.

Negotiations over the knotty issues involved are being conducted by Edward Seaga, the JLP leader, and attorney David Coore, QC, a many-time PNP minister of government.

Seaga, not a lawyer by training, has the not insignificant support of Rhodes Scholar, Delroy Chuck, the attorney who shadows the attorney-general and minister of justice.

Firing the first salvo at his party’s annual conference last Sunday, PNP president and prime minister, P J Patterson, set an 18-month timetable to transform Jamaica into a republic, dropping the last vestiges of the island’s colonial past. Patterson, seeking unity on the matter, invited the Opposition to join the process to republican status.

But Seaga responded with a ‘curve ball’ of his own, saying his party’s support would come only if the Government backed down from its current position and called a referendum to decide whether Jamaica should leave the United Kingdom-based Privy Council, in favour of the Caribbean Court of Justice (CCJ) now in the making.

Seaga also suggested craftily that The Queen must remain as Jamaica’s head of state, in order for Jamaicans to maintain access to the Privy Council. In a statement issued last week, he outlined the party’s position: “The retention of The Queen as head of state would become essential as this would allow Jamaicans to exercise their inherent right to seek justice through the Privy Council directly by petitioning the monarch, even if the Constitution is amended to remove the right of appeal through the Privy Council.”

The JLP position set off a mostly legal discussion that is likely to stall Patterson’s plans to take Jamaica republic. Several analysts have proffered varying comments on Seaga’s strategic offer countering that of the PNP president.

Keith Sobion, principal of the Norman Manley Law School, believes the JLP is standing on a shaky constitutional leg by insisting that The Queen should be retained as head of state.

According to Sobion, the JLP is making an error in basing its claim on the seldom-used Section 68 of the Jamaican Constitution, which vests some executive power to The Queen as head of state. “The Queen has mainly ceremonial powers. In any event, most of her executive powers are vested in the Cabinet,” the academic tells the Sunday Observer.

He cites the case of Australia, which retains The Queen as head of state, while abolishing appeals to the Judicial Committee of the Privy Council based in the British House of Lords. “I know of no case from Australia that went to the Privy Council where The Queen said she had some authority,” states Sobion.

His position is similar to that of Justice Minister A J Nicholson, who argues that the direct right of appeal to the monarch as “the fountain of justice” has been made redundant over time and by legislation.

“The Statute of Westminster settled the matter in 1931,” Nicholson said in a statement issued last week. “This statute recognised that the Parliament of a dominion like Canada had the right to abolish all appeals to the Privy Council, whether they were appeals as of right, or appeals by leave (permission) of the Canadian Court of Appeals by special leave of the Judicial Committee of the Privy Council.”

The justice minister further points out that the Jamaican Independence Act of 1962, in mirroring the Statute of Westminster of 1931, recognises the sovereign right of the Jamaican Parliament to abolish all access for appeals to the UK-based tribunal, with or without the permission of The Queen.

However, Chuck, the Opposition spokesman on justice, accusing Nicholson of skirting the real issue, argues that such decisions should be taken by a body higher than Parliament — the people, through a plebiscite. “Only the people can decide on leaving the Privy Council,” Chuck remarks, echoing the mantra of opponents to the replacement of the Privy Council with the CCJ.

He suggests the Government wants to fast track the establishment of a Jamaican republic to coincide with the removal of access to the Privy Council in order to close all loopholes to appeal to the UK-based body.

“If you remove the Privy Council,” argues Chuck “and leave the monarch, there will be a lacuna. People will still have the right to appeal directly to The Queen by special leave.”

A referendum, agrees attorney Frank Phipps, is required to remove The Queen as head of state as well as to entrench the CCJ. “You can’t have the CCJ outside of the Constitution,” warns Phipps, who has been a strong advocate of establishing a republican system of government in Jamaica.

“The system of government,” he says, “is fundamentally flawed.” The noted attorney wants a system of government with a clear separation of powers between the executive and legislative arms of government.

However, Phipps may have to wait longer for the introduction of a republican system of government, at least until the country sees who will be check-mated in the political chess game or who will blink first.

In the meantime, Nicholson now seems agreeable to a phased withdrawal from the Privy Council, a suggestion which was first mooted by the opposition leader.

“Australia at one stage had abolished certain appeals to the Privy Council while allowing special leave for others to be heard,” Nicholson tells the Sunday Observer.

But, responds Sobion: “It is a little unusual to have two final courts. Do it one way or the other.”