Jamaicans were recently awakened to a realisation of how deeply divided the nation is over a matter of fundamental human rights for the descendants of the people from Africa. The exposure was made in the two national newspapers: The Jamaica Observer on April 5, with ‘Long live the Privy Council’; and The Gleaner, April 7, ‘The Privy Council must go!’

This is at a time when the people are excitingly involved in a conversation about reparation from Britain for the enslavement of their ancestors, the direct remit from their representatives in Parliament that no one can deny or challenge with the hope of success.

The Privy Council

It may help in deciding which side to support in what is part of a bigger problem of constitutional reform by first understanding what is the Privy Council.

The Queen of England is the monarch in the English legal system in whose name the three arms of government function. Traditionally, the sovereign may appoint any person as a privy counsellor to advise him/her on matters of State, but, in practice, appointments are made only on the advice of Her Majesty’s Government. Heads of Government in former colonies of the British Empire were appointed privy counsellors and today the prime minister of Jamaica is a privy counsellor.

The Privy Council is where final decisions are made for justice in the courts outside of the kingdom, and where the monarch would also be advised on matters of law that cannot go through the courts to be binding on the Government (see Crossman, HC Deb 06 March 1967 vol 742 cc1038-91038).

An Act for the better Administration of Justice in His Majesty’s Privy Council was passed in 1833 to establish the Judicial Committee of the Privy Council (JCPC), constituted by individuals who hold or have held a high judicial office in the UK or former colonies — Sir Edward Zacca, a former chief justice of Jamaica, and others from the Caribbean sat on the Privy Council to advise Her Majesty on the outcome of legal disputes. Although Prime Minister Andrew Holness is a privy counsellor, he is not qualified to sit on the judicial committee.

Getting rid of the Privy Council as the final court of appeal for Jamaica is where the story come to bump as part of a bigger plan for Jamaica to become a republic replacing The Queen, and where the Privy Council will be replaced by the Caribbean Court of Justice (CCJ).

It seems odd to be getting rid of Her Majesty’s Privy Council before deciding on the removal of The Queen, but that is what Barbados did when joining the CCJ. Trinidad and Tobago did the reverse by becoming a republic while retaining the Privy Council as the final court of appeal. Either way will have a serious impact on Jamaica in a claim for reparation.

Caribbean Court of Justice

The agreement establishing the Caribbean Court of Justice (the CCJ) was signed by Caricom states of Antigua & Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St Kitts & Nevis, St Lucia, Suriname, and Trinidad & Tobago on February 14, 2001. February 15, 2003 two other states, Dominica and St Vincent & The Grenadines, signed the agreement, bringing the total number of signatories to 12.

The court in its original jurisdiction settles disputes between Caricom member States concerning the interpretation and application of the Revised Treaty of Chaguaramas (the agreement that established the Caribbean Community and Common Market).

The CCJ is also the final Court of Appeal on civil and criminal matters for four Caricom members states; namely Barbados, Belize, Dominica, and Guyana — others like Jamaica go to the Privy Council as the final court of appeal under section 3 of the Privy Council Act.

In the milieu of jurisdictional dispute for the redress of grievances, the greatest grievance that demands immediate attention by the courts is the claim for reparation from Britain for the enslavement of the people from Africa under British rule in Jamaica.

A claim for reparation

The Abolition of Slavery Act, created the same year as the Privy Council Act, paid the wrong people at Emancipation, giving more to those who already had too much from the sweat, blood, toil, and tears of the people from Africa who got no compensation for their work, and the mental and physical injury from enslavement.

There is a pressing need to correct this injustice where the CCJ would have no jurisdiction to hear a claim against Britain. Misfitting it would appear for independent Jamaica to seek redress from the British Queen, where the sacrifice of our heroes and the suffering of unsung ancestors occurred under British rule. We honour their memory by making the claim for reparation under Section 4 of the Privy Council Act as restorative justice that completes their struggle for human rights in freedom and independence.

Jamaica presently uses Section 3 for final appeals from the courts: (3) All appeals from sentence of any judge, &c to be referred by His Majesty to the committee to report thereon.

Section 4 is a special provision for other matters that cannot go through the courts for redress, such as reparation for slavery. Section 4: His Majesty may refer any other matters to committee. It shall be lawful for His Majesty to refer to the said judicial committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit, and such committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid.

Here a claim for reparation is intimately related to The Queen. The people of Jamaica must decide whether it is better to support the removal of The Queen and Her Privy Council for a republic, where Section 4 will disappear, or better to seek reparation from Britain on the advice of the Privy Council, as the legal way for the United Kingdom Government to pay. First things first.