The fact that Daryl Vaz and I do not share the same political party affiliation will not prevent me from congratulating him for having been validly elected to sit in Jamaica's House of Representatives.

He would, of course, have already gained a real measure of respect when, from the floor of the House, properly there or not, he exhorted his colleagues, who might be labouring under a constitutional impediment similar to his own, to have matters regularised.

Vaz proved himself prepared both to obey the dictates of the Constitution and to relinquish what undoubtedly hundreds of thousands of Jamaicans regard as a privilege - that of being a citizen of the United States - in order to serve the people of West Portland, as he has proclaimed. His former party leader, Edward Seaga, unsolicited, had acted in like manner some decades before.

His opponent in the recent by election, Kenneth Rowe, is also worthy of signal recognition. To have had over 5600 votes cast in his favour after only three weeks of presence and campaigning in the constituency is no mean feat.

His tally was not far off the numbers that were polled in favour of his predecessor in the last general elections. And this, it has been admitted, in circumstances in which no other constituency has benefited from as much government attention and expenditure over the past 18 months and in which the party that Rowe represents had little or no leadership presence or organisation during that time.

Democracy is alive and well in Jamaica; congratulations to both men. Vaz and his legal advisers should now move to have the matters arising out of his ugly confrontation with members of the security forces on the night of the last parish council elections speedily resolved by the courts.

For my part, I had taken a personal decision to refrain from making any public comment on what has generally been referred to as the dual-citizenship issue. The overriding reason was the fact that battle had been joined in the courts and I continue to hold the view that extreme care should be exercised in pursuing or encouraging public discourse on matters which are still to be adjudicated upon by the courts.

It is true that the information age with its credo relating to the "citizens' right to know" has assumed a dominance which threatens the hallowed and sensible principles that govern the sub judice rule.

It is also true that, in our giant neighbour to the north, that rule appears to have all but evaporated. We have witnessed on our television screens the wide-ranging discussions during the first OJ Simpson trials, for example.

Still unconvinced

I remain unconvinced that that is a trend which we should follow, particularly, in a small and fractious society such as ours. And the reasons have nothing to do with the prospect of our judges being influenced by that or other extraneous means. Juries may be so influenced, even with the safeguards that our system provides; but I have not been presented with any evidence to suggest that our judges, with their training and the integrity that they have displayed over the years, have indicated any hint of such a prospect.

However, when the "experts" busily plant the seeds of their "considered opinion" within the minds of the public and the judge rules in accordance with that expressed view, some unfortunately will read that ruling as the judge being bullied. And when the judge rules in a manner contrary to what is expressed by the "experts" one is likely to hear the public query: "how come?"

So, to preserve public confidence in the administration of justice, it is far better to follow the sub judice rule. Certainly, I have heard sentiments expressed to the contrary, particularly, from media practitioners and I respect their right to hold such views. For me, nevertheless, the desirability of preserving and enhancing confidence in the rule of law and the pursuit of the just society trump those sentiments. Does the Broadcasting Commission have a view?

As far as the outcome of the first of these cases is concerned, some say one thing, some say another. Whatever views I may hold on that score, one aspect is most pleasing. it is that Jamaica was presented with a challenge which had constitutional, social, cultural and political tentacles and we met the challenge ourselves - our judges, our lawyers, our political parties, our voters and our elections directorate.

Any praise or criticism of any element among that cast of characters is directed towards our own. Each member of that cast will have to live in this society, among their own people, and with the part they played, whether it is to be regarded as complimentary or otherwise.

Mark you, we were obliged to seize the moment, for once the challenge reached the courts, we had to 'thrash it out' among ourselves since our internal judicial system was the final port of call. And so it should be. Section 44 of the Constitution is clear that, on any question whether any person has been validly elected or appointed as a member of either House, the court of appeal has the final word.

Constitutional provisions

It has been suggested in some quarters that, as this is a matter concerning the interpretation of constitutional provisions, an appeal may lie to the Judicial Committee of the Privy Council. My answer is that not only the letter and spirit of the constitution, but also our history and our heritage constitute a bar to English judges deciding who should or should not sit in our Parliament.

Prime Minister Golding says that there is some urgency concerning the reform and modernisation of these constitutional provisions. He is not sure about adopting a comprehensive reform course to establish a new platform of governance and a new constitutional order.

Golding and his party continue to bob and weave about Jamaica becoming fully involved in the Caribbean Court of Justice regime and have now begun to push the idea of the Opposition's 'uncalled-for tying' of that involvement to any agreement towards the passage of the Charter of Rights and Freedoms.

This suggestion will have to be fully addressed in due course, but let it here be stated that it is neither an unreasonable nor an uncalled-for position that the Opposition is placing onto the table; it is a practical and inevitable outcome, as would be appreciated, if the governing party thinks about it.

The prime minister says that now that the death penalty issue is "out of the way", we can move on to passage of the charter. Well, it is not out of the way as a result merely of a conscience vote taken in the parliament. There are other steps to be taken to have the guarantees given by the Government during that debate fulfilled, so that the death penalty issues may be "out of the way".

Those steps are being closely eyed and monitored by certain groups at home and abroad and who have a vested interest in the Privy Council continuing to have final say in death penalty and other human rights matters from Jamaica. The Government would do well to contemplate carefully how Barbados approached that required constitutional amendment relating to the death penalty and the route that Belize is taking.

Reform proposals

But the question must be asked whether Golding is alive o the inter-connectedness of the reform proposals that he and the court of appeal have put forward and those that are already on the table. The judges and the lawyers have been at pains to remind the public that this is not a "dual citizenship issue"; it has to do with an acknowledgement of allegiance, obedience or adherence.

The prime minister has invited us to contemplate which public officers, including judges, quite correctly, would fall 'within the net', so to speak. Well, we await the political, mental or other gymnastics that are to be employed to exclude the judges of our highest court who owe no allegiance, obedience or adherence to Jamaica, including the fact that we have nothing to do even with how they are appointed or how they are remunerated.

So, with these proposals coming from him, the governing party can no longer dodge the issue of severing ties with the Privy Council in the search for a new order of governance. And it is good that he has called for dialogue.

But he cannot in one breath trenchantly accuse the Opposition of plotting what he terms the "constitutional overthrow" of his government and in the very next breath claim to be inviting consensus. This approach has become a habit. And worse, when it is pointed out to him that his accusation has no foundation, he seeks to find uncomfortable refuge in some promotional statement made on a political platform and which admits of several interpretations.

The prime minister must nevertheless seize this moment to set the kind of tone that will lead to cooperation towards the modernisation of our constitutional arrangements and the adoption of a new order of governance. It is not difficult, provided we find the motive force that will propel us to work together. But let us see if he will prepare the wicket properly for that process or simply continue to talk the forever constitutional and 'constructive engagement' talk.

A.J. Nicholson is Opposition spokesman on justice. Feedback may be sent to columns@gleanerjm.com