Ditch the court, keep The King
The Government, in keeping with its agenda of reforming the constitution of Jamaica, has now formed a constitutional review committee with the stated aim of revising the constitution of Jamaica as it transitions from a monarchical State to a republican one.
This, the Government claims, will be the crowning act (pun intended) of years of work done, going all the way back to a time before Jamaica became independent. There is much and more that has been said about all the proposals put forward for such a revision. The most popular argument that has been put forward is the matter of Jamaica’s sovereignty in having its own institutions. Yet, while the committee has been touted as being committed to this goal, it has also made statements that are blatantly in contradiction of this aim. This might come as a surprise, but while there is an eagerness to replace King Charles III with a president of the Government’s choosing (no presidential elections for the people), a member of the review committee also stated in an interview with a local TV station that that there is no immediate plan to move away from the Judicial Committee of the Privy Council (JCPC) and towards a local or regional final appellate court. This turn of events is one that undoubtedly belies any talk whatsoever regarding Jamaican sovereignty.
As far as the independence of Jamaica goes, it should be clear that the JCPC is a far greater hindrance to Jamaican sovereignty than the monarchy. It sounds strange to the uninitiated, but contrary to popular myth, the Caribbean Court of Justice (CCJ) and a republic do not go hand in hand, they are separate issues. And it is very much possible for a country to have its own final appeal court while still maintaining ties to the Crown. This is seen in the cases of countries like Canada and Australia.
This Government is telling us that we are better doing the opposite, getting a president but still remaining under the Privy Council (which by the way is legally possible). This then leads to the question: If the Government is serious, how can they leave our judicial affairs in the hands of an external entity? Unlike The King, who outsources all of his executive authority to the governor general — see Section 68 (1) and 68 (2) of the constitution for reference — the JCPC does not outsource their judicial authority to a local body but has instead taken it upon themselves to overrule the right of Jamaican judges to make rulings and by so doing set judicial precedence from a jurisdiction far from our shores.
We have known for the longest time that Jamaica has been plagued by a crime problem and that there are many who would want to see resumption of the death penalty, even documents as recent as the 2011 Charter of Rights confirm that this is the will of the Jamaican people. Yet the JCPC has constantly found ways to ban the death penalty de facto if they can’t do it de jure. The cases are well known to us. The Dick Trimmingham case, the Lambert Watson case, and not to mention the landmark Pratt and Morgan case are all prominent examples of which any legal scholar would be aware. What is the point being made here? If sovereignty is the argument of the Government for wanting a republic, then it falls flat in light of this revelation re the court.
Why does this argument apply to the JCPC but not the monarchy? It is simple. There is no evidence whatsoever that the monarch meddles unduly in politics. In fact, all the evidence points to the contrary. At the 2022 Commonwealth Heads of Government summit 3 months before his accession, The King (who was then Prince of Wales) stated that every country in the Commonwealth has the right to choose its own form of government and that the Crown will not interfere to keep any country tied against its will. But what is even more interesting is a revelation by noted diplomat Sir Ronald Sanders, detailing a conversation between Cuban President Fidel Castro and Antiguan Prime Minister Sir Lester Bird. In the conversation, Bird confided in Castro his plans to make his country a republic, thinking to get tacit approval from the revolutionary leader. Castro, however, surprised him by telling him that since Queen Elizabeth II did not directly meddle in his Government, then becoming a republic was completely pointless. Castro was, of course, in the right to assert that a figurehead monarch who does not insert him or herself into politics was no hindrance to sovereignty at all, so if a communist can see the truth of it then how come our leaders are blind to this fact? Or is that they know the truth but are counting on the rest of us to be blind and to swallow the Kool-Aid of whatever they tell us?
Let us be very clear here, Jamaica’s sovereignty is rock solid and irreversible. A president will not raise our standing in the world because there is no country that disputes our sovereignty, the only people that contest it are internal dissenters with a biased anti-royal agenda. The Montevideo Convention on the Rights and Duties of States gives four criteria that define a fully independent country: fixed geographical territory; a permanent population; a legitimate Government capable of exercising all internal authority and conducting external relations; and recognition by the international community. It would be hard-pressed for anyone to make the case that Jamaica does not already posses all four.
In addition, it must be pointed out that every single country whose sovereignty is currently in dispute is already a republic. Prominent among these include Palestine, whose sovereignty is being disputed by Israel and its allies. Then there is Kosovo, which some states consider a breakaway region from Serbia, while Abkhazia and South Ossetia are still seen as part of Georgia. The most well-known case by far is that of Taiwan, which, thanks to the one China policy is struggling to gain recognition from majority of the world’s nations, including our Government here in Jamaica. It goes without saying that Jamaica does not have this problem, which would logically make the republican argument moot.
Some would posit that there is a need to have our own thing instead of sharing a monarch with 14 other countries. Yet those who would make such argument would have no problem sharing a final court of appeal, either the JCPC or the CCJ. How then can we be independent under such a circumstance?
This concern is exacerbated by the fact that, unlike becoming a republic, there is no need for a referendum to alter the final court. Given the prior attitude of the Government, this might be surprising, but it is exactly what was stated in the above-mentioned interview. This revelation runs counter to what the current ruling party has said in the past. Back in 2012 the then Government tabled a motion in Parliament to replace the JCPC with the CCJ — they were, of course, using it as stepping stone to axe The Queen. The then Opposition — now the Government — opposed this, claiming that the court cannot be removed without a referendum, now they are saying the exact opposite, which raises two questions:
1) Why did they give the impression that a referendum was required to move to the CCJ if they knew all along that was not the case?
2) Why are they focused on a republic now, which requires a plebiscite, when it is far easier to deal with the court where a plebiscite is not needed?
So far the government has only provided more questions and very little answers. If they want sovereignty so bad then why keep the court when its rulings have a greater impact on our daily lives? If switching from monarch to president requires a referendum, then why not just focus on the court for which a 2/3 vote in Parliament can seal the deal? This Government claims to have its priorities in check, but anyone looking at their trajectory should throw cold water on that suggestion. They keep saying that there is an urgency for a republic; urgency from whom? Urgency from where? What are they not telling us? That argument really doesn’t make sense unless they can show the Jamaican people, the real urgency in this.
This is not a bottom-up suggestion but a top-down imposition and as such the arguments fall flat when all the moving parts are considered. It is not hard to see that it is far better for the Government to ditch the court and keep The King.