Wed | Dec 2, 2020

A.J. Nicholson | A visa? Surely, a bridge too far

Published:Sunday | July 5, 2020 | 12:34 AM
Delroy Chuck
Delroy Chuck

These overdue questions are being asked directly of Jamaica’s justice minister on the occasion of the 127th anniversary of the birth of the Right Excellent Norman Washington ‘N.W.’ Manley – a Rhodes scholar some six decades before him – whose respectful approach to the practice of law and whose faithful adherence to the hallowed principles of justice have served to settle the standard by which every member of the legal profession in Jamaica ultimately comes to be judged.

Minister Chuck:

Q1. How many, if indeed any, of the families residing in the village of Ritchies in upper Clarendon where you grew up do you think are financially able to afford to pursue a case involving the plot of land – their source of sustenance – for final justice in their court of last resort, the Privy Council in London, England, should such a stomach-churning necessity arise?

Q2. As an attorney who has practised in our courts of law for several years, would you not have long been persuaded that, if our final court of appeal were, like all our other courts, to sit and preside within our borders, the heavy load of such financial affordability for those families and for all Jamaicans would be lightened exponentially?

Q3a. Of course, you know that the steep cost of pursuing an appeal to the Privy Council entails, at the very least: fees payable to senior and junior local attorneys; fees payable to a solicitor in the United Kingdom (UK); the cost of travel to and from the UK for the local attorneys; upkeep in a hotel, and travel, within London for the local attorneys, all of which would add up to a sum – prohibitive to the vast majority of the people whom you are sworn to serve – in millions of dollars? Even though a resort to remote hearings would give rise to some reduction in cost?

Q3b. Was the court sitting on Jamaican soil, would fees for local attorneys not be the only cost for such a family to contemplate? And indeed, are you, Counsel, not numbered among our attorneys who often waive, or negotiate downward, the fees payable by the too-many financially challenged litigants for representation in our courts locally?

Q4a. As justice minister, do you not wrestle with the fact that Jamaicans have no companions anywhere on the planet who have found themselves shackled by the bewildering burden of being compelled to obtain a visa to be present in one of their courts, their most superior court of justice?

Q4b. Is that where we should be as a people? Are citizens in a free society not supposed to have unimpeded access to their courts? How can the authorities, Minister Delroy Chuck, in this liberating age, be so uncaring as to ignore and decline to urgently do something about such an infuriating inequity?

Q4c. And are your expected agony and inner turmoil no doubt born of the fact that this is truly the kind of stuff that myths and fables are made of – not in any sense believable – and has no place anywhere, and certainly not in a practising democracy. Does this not weigh upon you painfully as being, surely, a bridge too far?

Q5. Do you not regard these stumbling blocks – these exhausting hurdles – in the way of access to justice in one of their courts as being repugnant to the principle of equality in the eyes of the law and the privilege of equitable pursuit and enjoyment of the rights to which all Jamaicans are entitled? Shouldn’t all of this have long been behind us?

Q6a. Surely, you do not dissent from the universal acknowledgement of the Caribbean Court of Justice as a well-appointed and properly functioning final appeal tribunal, already embraced by four of our sister regional territories, and that the widely acclaimed method of financing of this court, which is programmed to sit within the countries themselves, is also borne, in part, by the Jamaican taxpayer?

Q6b. And, again surely, the highly privileged learning to which you have been fortunately exposed could never have led you to fall in with the unsustainable claims of one of your former political leaders, Edward Seaga, over time, that: “The Caribbean Court of Appeal is being established as a route to federation through the back door”, and that: “Pure justice comes from the Privy Council”, which sadly admits of an inference of white superiority; and the unforgettably insulting assertion of a former head of government within CARICOM that the judges of the CCJ will deliver only “a lesser breed of justice”?

Q7a. Have the judges of the Privy Council, in answer to a question, asked of them on behalf of your own party, among others, not advised that, for Jamaica to join those sister territories in having our final court sit and preside right here on Jamaican soil, all that is required is for both political parties to agree together for 56 positive votes of 42 members of the House of Representatives followed by 14 members of the Upper House?

Q7b. As the portfolio minister responsible for the legal affairs of our country, what could have caused your sense of fairness to urge you on to conclude that, for those stumbling blocks to be removed from the path of our Jamaican brothers and sisters, it is better that you brush aside the uncomplicated proper legal procedure of 56 votes in Gordon House laid down by our highest court, and proceed to substitute the partisan political demand for an unrequired general referendum vote, with a cost to our people of more than a billion tax dollars?

Q8. And, are you not aware of the danger of the possible stain on the sensitive system of the judicial arm of government and on the fragile system of the administration of justice that could flow from probable irresponsible statements made in the heat of such a general political campaign?

Q9a. With that supremely valuable caution in mind, have you, minister, not asked yourself why, despite the inexplicable provisions in the independence constitutions of a couple of Caribbean countries for a referendum vote to be taken, not a single one of the 40-plus former colonies of Britain across the globe – in the Americas, on the African continent, in Asia and the Far East, and Down Under – that have over the years withdrawn from the Privy Council and adopted an easily accessible final court of appeal presiding within their own territorial borders has ever taken the route of the holding of a referendum?

Q9b. And why, in the face of that telling historical and cultural reality, do you stubbornly insist in leading your less initiated fellow travellers in the wish to go where all before us have feared to tread? Or is that a claim of superior wisdom?

Q10a. As an ardent student of legal history, do you consider it right and just for our people to continue to be deprived, simply as a result of some promise to worship at the altar of that stipulation, selfishly laid down by the leadership of your political party for such an expensive unrequired referendum exercise to be undertaken?

Q10b. Can we then expect that you would also have already advised the culture minister that she is obliged to insist on the holding of a referendum for a decision to be taken concerning the removal of statues and other memorials of slavery and colonial times as is actively encouraged by the current impactful push of massive global movements such as Black Lives Matter and Rhodes Must Fall?

Q11. Minister, does it not bother you that, throughout all these several years, the people of Jamaica have never been able to extract from you, with your experience and speaking on behalf of your party, a well-reasoned empathy-filled explanation that justifies the steadfast presenting of yourselves as the chosen vessel in our country on which the unjust denial of this yearned-for privilege of access for all of our people continues to rest? In the absence of that kind of cogent care-filled explanation, does the presumption of regularity not fade away?

Q12. And, how does this all square with your present political leader observing, as he sought quite recently to address certain issues relating to the rejection of the offer from Britain of a new prison, that: “As a politically independent people, we must truly take on an independence mindset ... always having a clear vision as to the priorities that are in our best interest?”

Mr Chuck: In responding to the needs of our people, the most blatant and lasting unforgivable form of cold disrespect that can be openly shown towards the sworn duty on the part of those who govern is the deliberate withholding of the privilege of access to justice, however, packaged, from those to whom the solemn duty is owed, the governed. That constitutes the highest of all of “the priorities”, as recent events would no doubt have brought home to you!

Q13. Wherefore, what will it take for you to come finally to the true understanding that, for the N.W. Manley standard to be met, a “clear vision” of the “best interest” of all our people and of their children’s children requires that this is an “independence mindset” issue that can not, and will not, be left alone?

- A.J. Nicholson is officer emeritus of the People’s National Party.