Editorial | Collision of crowns

It is not known what constitutional advice King Charles sought, or received, before referring Jamaica’s request for an advisory opinion on whether slavery was ever legal under English law to the Judicial Committee of the Privy Council (JCPC).

However, it is unlikely that the King acted without consultation with the British government, which would make his decision to forward the petition to the justices a notable constitutional act and a significant political win for Jamaica and other advocates of reparatory justice for chattel slavery. Or, as Olivia Grange, Jamaica’s minister of culture, gender, entertainment and sport, put it, this is a “big deal”. The reparatory movement has a foot firmly planted in the doorway of the judicial councils.

Despite the UK government’s pre-emptive declaration that it will never pay reparations, there will be little comfort in any conclusion arrived at by the Privy Council for the British parties involved. Should the judges hold that slavery was illegal and Britain continues to resist its legal and moral obligations to the descendants of illegally trafficked and enslaved people, the UK would reinforce perceptions of a hypocritical and selective commitment to the rule of law and justice.

On the other hand, any opinion, however framed, that upholds the legality of slavery is likely to be seen as a new framing of Lord Mansfield’s 1772 compromise in his ruling in Somerset v Stewart.

At the same time, some of the issues raised by this case highlight the illogic of Jamaica’s constitutional arrangements and the urgency with which it should pursue the twin processes of withdrawing from the Privy Council as its final appellate court and replacing the British monarch as its head of state.

Between the 17th and 19th centuries, European countries trafficked more than 15 million Africans, mostly to the Americas, to be sold as chattel slaves. Around eight per cent of them came to Jamaica, which was a British colony for more than 300 years. Jamaica and the other countries of the Caribbean Community (CARICOM) are at the forefront of the push for reparations for what a United Nations resolution described as “the gravest crime against humanity”.

USE HIS AUTHORITY

It is as part of that campaign that Kingston asked King Charles to use his authority, as provided for in the 1833 law establishing the JCPC, to request an advisory opinion from the court on three fundamental questions:

• Whether the transportation of Africans to Jamaica and their forced enslavement were contrary to the principles of English common law, and whether any legislation purporting to authorise chattel slavery would have been void as repugnant to the fundamental principles of English law;

• Whether the forced transportation and enslavement of people of African descent, up until 1838, constituted crimes against humanity under international law for which the UK bears responsibility; and

• Whether the United Kingdom is under an obligation to provide a remedy to the Jamaican people.

While, on its face, King Charles would appear bound to act on the advice of his Jamaican ministers in forwarding the petition to what is also Jamaica’s final court, the matter is not that straightforward. There was the potential for a collision of crowns on this issue King Charles is not only the sovereign of Jamaica, acting on the advice of his Jamaican government. He is also the monarch of the United Kingdom, acting on the advice of the British government, which has a direct interest in the questions on which Jamaica wants the Privy Council to pronounce.

Indeed, this potential conflict arose tangentially in the early 1970s over a dispute between Australia’s federal government and the states of Queensland and Tasmania concerning ownership of seabed resources. The state governments asked Queen Elizabeth II to refer the matter to the Privy Council for an advisory opinion. Most legal opinions held that any such request was the responsibility of the federal government, on the basis that the Queen was sovereign of Australia rather than of the individual states.

Crucially, however, Queen Elizabeth took advice from her British ministers, who were concerned about the political optics and broader relationship with Australia if she followed through on the states’ request. The Queen ultimately decided against forwarding the petition to the Privy Council. Whether the British government expressed a view to the King on Jamaica’s petition has not been disclosed.

First round to Jamaica and other campaigners for reparatory justice.

SAME JURISTS

However, to complicate matters further, the judges of the JCPC are the same jurists who sit on the United Kingdom Supreme Court, Britain’s apex court, and are heirs to the judicial tradition over which Lord Mansfield presided.

In Somerset v Stewart, a slave owner, Charles Stewart, attempted to forcibly send an enslaved man, James Somerset, from England to Jamaica for sale. Somerset had refused to serve Stewart in England.

In his ruling, Mansfield said that slavery was “of such a nature that it is incapable of being introduced on any reasons, moral or political, but only positive [written] law”.

However, Mansfield did not specifically declare slavery illegal in Britain, and confined his ruling to the attempted forcible removal of Somerset.

The question now is whether, in the absence of a “positive law” in England to underpin slavery, what Mansfield described as an “odious” system could legally and morally have been exported to the colonies.