It was the conscience of a court that gave us Brown vs Board of Education (1954) in the United States, that overturned Plessy vs Ferguson, which allows states to stop the practice of separate public services for blacks and whites, which created the term before, “separate but equal.” It was also a court with conscience that produced Roe v Wade (1973) landmark decision, that allows women the right to abortion, and not government controlling their bodies. A court without activism has no understanding of social justice.
The Jamaican constitution was written and adopted in 1962, the year of our
independence from Great Britain. Under the constitution, the final court of appeal arising from decisions made by the Court of Appeal, is the Judicial Committee of the Queens’s Privy Council (UK Privy Council), as stated in Section 110 of the Jamaican Constitution, which made it clear that decisions of the Court of Appeal in Jamaica can be appealed to the Privy Council or Her Majesty in Council.
So the Court of Appeal is the highest court in Jamaica, but not the final court. So the decision handed down by our Court of Appeal on the Andrew Holness vs Arthur Williams Jr case, while it is law, needs finality from the UK Privy Council for it to get closure. The court misses the bigger picture which is a potential threat to the very same constitution it is protecting, by assuring any government of a two thirds majority in the Senate.
The Governor General appoints eight Senators recommended by the Leader of the Opposition and thirteen from the prime minister to carry out the functions to which they were appointed. Now, one cannot in good conscience think that these senators are independent, or the Senate for that matter. The Senators are required, not by law, but of the intent of the framers of the constitution, to respect, follow party lines and not break away.
A constitution is there to interpret, but also to think beyond. So brains are required to be used like never before to try and figure out what is it the framers were trying to say, based on the way the constitution was written. I am pretty sure the framers of the Constitution of Jamaica were not saying Senators can vote independently of their political party. This would open the door to dictatorship by the assurance of enough votes by the majority in the Senate to change the constitution for their own benefit.
Courts exist to interpret and pass laws, adjudicate cases, but also to protect people from abuses of the state and make sure the law is not a tyranny of itself. Activist courts usually make sure the vulnerable is protected and go beyond the mere letters of the laws and look at the spirit and intent of a constitution. Courts must have conscience in making important rulings.
Edward Seaga, former prime minister of Jamaica and JLP leader, one of the framers of the Jamaican Constitution, rightly said the ruling by the Court of Appeal is flawed and wrong. The Court is not thinking and misses the potential dangers posed by a dysfunctional Senate, in which the opposition is denied its full slate of 8 Senators voting along party lines.
Mr Andrew Holness did not get justice but a rebuke instead by a court that has no conscience. My advice to Mr Holness, is to rest the matter and seek a political solution as this is having a toll on the JLP. Sometimes one has to end something in order to preserve it, and Mr Holness intends to do just that I hope. In the meantime, I am confident the UK Privy Council is a court with conscience as it has showed in the Agana Barrett case and many more. Let us hope our high courts in Jamaica will adopt the conscience of a court.