FORMER Prime Minister Bruce Golding says achieving constitutional reform in a bid to get the country to republic status will not move forward without consensus from the political directorate, particularly regarding the matter of the final court of appeal.

“We are at that point, where sadly, the momentum towards constitutional reform has been disrupted by the issue of the CCJ [Caribbean Court of Justice]. That is the elephant in the room. That elephant has grown fatter and more boisterous by the way in which the debate about it has been conducted,” Golding said on Tuesday during a forum held at the Faculty of Law, The University of the West Indies, Mona Campus.

The Opposition People’s National Party (PNP) and the governing Jamaica Labour Party (JLP) have been at a stalemate over the issue. The PNP has said it wants both the removal of the British monarch as head of State and dropping the United Kingdom-based Privy Council in favour of the CCJ as the nation’s final court to be addressed at the same time, and not on a phased basis as the Government has proposed.

PNP President Mark Golding has said that the PNP would not be supporting the move to establish Jamaica as a republic if the CCJ is placed on the back burner.

During his session, dubbed ‘A Reasoning with Mr Orette Bruce Golding’ about reform of the Jamaica Constitution and de-linking from the British Monarchy, the former prime minister reminded that “nothing can happen, nothing in terms of constitutional reform, nothing in terms of the CCJ without consensus”.

Said Golding: “When those who strongly advocate for the removal of the Privy Council and for the accession to the CCJ, when they portray those who are against it as backward, anti-nationalist persons still trapped in mental slavery, I suggest that that is decidedly unhelpful. And when those who want to retain the Privy Council dismiss those who are in favour of the CCJ as persons who are trying to return to a federation through the back door, persons who are prepared to sacrifice the quality of justice for some intellectual obsession, I suggest too that that is decidedly unhelpful.”

“This adversarial approach will never work. Neither side in that argument can browbeat the other side into submission. It has to be consensus, not coercion,” he stressed.

Golding further noted that when the Opposition leader was minister of justice, he had brought three Bills to Parliament in 2015 to remove the Privy Council to establish the CCJ as the country’s final court. He contended that he must have been intended simply to layout his party’s position, stressing that it could not have been done in the hope of securing consensus through parliamentary debate.

“That’s not how you get consensus. That has never happened before — it is in the corridors, it is on the verandas, it is a quiet sitting down, and talking one on one. That’s how you get consensus and when you get consensus, then you bring the Bills, when you’re assured that you have the support to secure passage. So, let’s have a discussion. Let’s talk about it, but for God’s sake, let us have that discussion with an appreciation and respect for contending views and the concerns of the other side,” he said.

He further argued that while some arguments put forward by both political parties have merit, “the issue of constitutional reform is stuck unless we can arrive at some compromise regarding the CCJ”.

He added: “The PNP strategy is very transparent. The PNP is using that balance that it holds in the Senate as leverage. The PNP is saying, ‘Look, if you want my vote to deal with these matters of constitutional reform, even though we agree with them, but if you want my vote on those matters, you have to give me the CCJ’…So let’s face it, unless there’s a change in the PNP position, there’s going to be no constitutional reform until this issue of the Caribbean Court of Justice is dealt with.”

He further contended that even within the political parties, there are persons in the JLP who he knows prefer to remain with the Privy Council and at least one prominent member of the PNP has come out publicly and defended the retention of the Privy Council as Jamaica’s final court.

Golding said that at this rate, the long-coming move towards constitutional reform may never materialise in his lifetime.

“We have been at this business of constitutional reform now for pretty much 30 years. I’m 76 years old now and I really am fearful that the reform that I had hoped we would have brought to fruition don’t appear likely to occur during my lifetime and that disappoints me greatly,” he said.

In the meantime, Golding said his take on the matter of the CCJ versus the Privy Council, is the question of ease of access.

“I would have a problem, for example, if I needed to take a case to the Privy Council and my lawyer told me that he applied to the UK High Commission and they turned down his application for a visa. I’d have a problem. The question of the legal fees that are involved, the airfare, the hotel accommodation, all of that,” he said.

Golding also contented that one of the issues that needs to be addressed locally by those who are advocating the CCJ, is that many of the cases that go to the Privy Council now for poor people, are handled free of cost by British lawyers, or else some of those cases would never reach there.

“And every time I’ve asked what comparative arrangement are we putting in place for the CCJ because it is still expensive to go down to Port of Spain. And even if they come here, it is still expensive to get lawyers to appear before them. I’m told that, ‘Well, that can be done through legal aid’ — that’s not good enough. We need to put in place a much more robust arrangement that people who cannot afford the heavy cost of legal representation can be assured that they will have the same free access to the Privy Council through pro bono,” he said.

But he noted that his issue is that this is not a judicial decision for Jamaicans to visit the Privy Council. “It’s not for the Privy Council to decide whether we can still go here. It’s a political decision. It’s a decision that is to be made by the British Government and the British Parliament because our access to the Privy Council is governed by the Judicial Committee Act of 1833. That’s an Act of Parliament,” he said

Golding argued, too, that British parliamentarians could therefore amend that Act next week to say that Privy Council cases will be subject to British dependencies and colonies and no longer available and they could do that without consultation with Jamaica.

“I’m uncomfortable about the fact that the right of appeal to the Judicial Committee of the Privy Council, which is specified in our constitution, is really not a right that our constitution has the power to bestow,” he said.

“The constitution seeks to bestow that right but it does so at the pleasure of the British Parliament. What would we do if at some point, the politicians in Britain who in recent times have shown an inclination to take some weird positions upending deceased and even centuries of tradition. What would happen if they decide that they’re going to change this Act of 1833. What we do at that time? Run down to Port of Spain and say, we’re ready now?” he said.

He said another option “would be to see if we can set up our own final court”. He argued that that is not an idea that should be rejected without consideration, even though that has issues, including cost implication, and trying to populate an apex court from the same small pool of talent, which would be done at the expense of the supreme and appeal courts.