The Association of Christian Communicators and Media, while endorsing Jamaica’s move to delink from the Judicial Committee of the Privy Council amidst the push to become a republic, says any party forming the next Government must pay key attention to recent Caribbean Court of Justice (CCJ) decisions which have already impacted savings law clauses of countries in the region.

Sections 13(12) and 18 of the Jamaican Charter of Rights and Freedoms, which in 2011 repealed and replaced the Bill of Rights chapter of the Jamaican Constitution, immunise from constitutional challenge, existing laws that criminalise sexual relations between men and preclude legal recognition of homosexual unions, respectively. They are referred to in the Commonwealth Caribbean as savings law clauses. In Jamaica’s case, existing laws are laws which were in existence before the charter came into force.

Byron Buckley, second vice-president of the Association of Christian Communicators and Media, during a virtual forum put on by the entity on Sunday evening to examine ‘The Power of the Christian Vote’, said concerns around these areas must be distilled before Jamaica makes the final break.

“The whole issue of the Caribbean Court of Justice, the Government and the Opposition are locked in a tussle as to what should be the issue of this delinking. What really should be the solution to that? Should these two parties be the ones to be deciding what goes first or how it should be done?” Buckley wanted to know.

“Our position is not that we shouldn’t complete the decolonisation process and go CCJ, the trouble is, should we join first or fix first, because those issues — if the CCJ is an activist court and they are making decisions that really should be pushed to the legislature, if the judges meet and they see that there is an issue, that there are some unmeritorious laws coming through the savings clause — they can say to the legislators, ‘Fix these, because you can’t take it upon yourself to undermine the constitution because you don’t know what next’,” Buckley argued.

“We should be saying to the Government, ‘Are you going to fix this? Fix this before we go’,” he said.

“The CCJ’s judicial code of conduct prohibits judges from association with what they call irrelevances… it means that if you are a known judge and you support something like that you can’t be a judge. There are all kinds of issues; we are just saying, let’s focus some more on it, we want to go, we want to leave England but before we go let’s look at these things,” he said further.

Buckley’s point was endorsed by theologian Peter Espeut, who pointed out that there was no way to appeal a decision of the CCJ once it has ruled.

“There are difficulties, it is a very complex matter. I am not happy with the way we select our chief justice in Jamaica. The other judges are chosen by the Judicial Services Commission which has representatives of politicians on it and a few other people but not the chief justice, the chief justice is chosen by the prime minister, I find this to be abhorrent, you cannot have the prime minister electing the chief justice, it is just not on and they have gone and mimicked the same thing with the CCJ,” Espeut contended.

“The other judges on the CCJ are chosen by the regional judicial services commission but the president of the CCJ is chosen by a group of prime ministers; I have a difficulty with that, because if the CCJ takes a decision we don’t like we have nowhere else to go to appeal it; they are the final court,” stated Espeut, who is also the dean of studies at St Michael’s Theological College.

“Now, it has been pointed out to me that in two cases recently the CCJ has voted to overturn constitutional matters that fall under savings clauses; the savings clause in Guyana and the savings clause in Barbados that prevented certain things from being changed. Our savings clause in Jamaica prevents laws to support abortion and gay marriage and so on; now, if in two cases in recent history the CCJ has overturned savings clauses, what is going to stop the CCJ from overturning the Jamaican savings clause and legalising homosexuality and abortion?” he asked.

“I have a very hard time on a point of principle saying we want decolonisation, we want our own local court but our own local court has problems. The president of the court is chosen by politicians and their track record is not good when it comes to savings clauses. So it’s not a simple matter. I have a hard time going with the CCJ right now; I think the Judicial Committee, with all its flaws, respects the savings clause in our constitution more than the CCJ does,” he declared.

In the meantime, pollster Don Anderson, who participated in the forum, said there was need for a referendum to gauge public sentiment on the issue.

“You don’t need to go to the public for every issue… but in critical issues like this there is a reason to go to the public via a referendum to establish the current sentiment amongst the population. I think it’s important to measure the public temperature on the issue of the CCJ and also what is the process by which and what should come first and what should come second and I think this is where we are stuck between the two parties, it is polarised,” Anderson said.

“The tie-breaker for me would be a referendum to determine what precisely the public feels about the issue of the CCJ and I think they should be guided by that, other than that it is going to be polarised,” he stated.

Prime Minister Dr Andrew Holness, in April 2023, named the members of the Constitutional Reform Committee to, among other things, assess how the passage of time has impacted the recommendations of the 1995 Joint Select Committee on the Constitutional and Electoral Reform Report, with the work being done in three phases.

According to the Jamaica Labour Party Administration, the first phase of reform will involve replacing the British monarch as head of State with a Jamaican president. The Opposition, however, is insisting that a decision on the country’s final court must also be made in tandem.

In December last year the Constitution (Amendment) (Republic) Bill, 2024 to amend the Jamaican Constitution so as to transition the country towards a republic was tabled in the House of Representatives and placed before a joint select committee for review. Opposition members, however, have, since January, boycotted those proceedings, saying they will not return until the Government explains why it has not yet chosen to accede to the CCJ as its final appellate court, over the UK-based Privy Council.