Thorny Road to the CCJ

The main talking point in the region is about the rejection, at least at this time, by Antigua/Barbuda and Grenada, to the move to the CCJ as the final Court of Appeal. In 2007/8, UWI-SVG hosted lectures on the CCJ by a member of the Cave Hill Law Faculty, Dame Bernice Lake of Anguilla, and Professor Simeon McIntosh of Grenada.  They were meant to provide information and facilitate discussions outside of the context of the passion and tensions of a referendum. The turn-out left much to be desired. At none of these lectures were there more than four lawyers.

Then came the 2009 SVG referendum where the issue of moving from the Privy Council was one in a whole constitutional reform package that was eventually defeated. There was, in my view, broad agreement on many issues, but disagreement on some, including how the proposed President was to be elected. If those points of disagreement were pulled out and worked on, with compromises where necessary, the result might have been different, although this could only be a matter of conjecture.

We have had three referenda since then, two in Grenada in 2016 and 2018 and one in Antigua in 2018. Professor McIntosh, who had been the initial architect of the first one in Grenada, died in 2013 before the referendum was held, but had indicated to me that there were flaws in the SVG approach which he pledged to avoid in Grenada. The decision there to vote on the individual issues would have been influenced by him. The issue of moving to the CCJ was however defeated, so there were obviously other problems.

One of the critics of the failed SVG referendum, Ricky Singh, considered Vincentians backward, wanting to hold on to the Queen’s apron strings. In a recent article in the Jamaica Observer, written, I believe, by Bruce Golding, in referring to the SVG referendum, he states, “… the question is whether the people were against the CCJ move specifically  or were not in favour of other constitutional changes with which it was packaged”. Sir Ron Sanders, one of the other critics of the failed referenda, wanted a more heads-on approach by the governments. Making them more politically partisan, it seems! He argues that the failed attempts damaged Caribbean identity and dignity. All this from one who holds a British Knighthood and appears not to feel as passionately about the retention of British honours and other colonial symbols.

In building the CCJ, efforts were made to avoid the shortcomings of the regional court system, but the majority of Caribbean people cannot separate the Apex from the rest of the system. They believe that the regional justice system is rotten to the core. It is with that system they have to contend. In her 2008 lecture, Bernice Lake quoted our PM to the effect that the CCJ could only come about “when there was adequate reform and restructuring within our domestic legal systems…” This is the crux of the problem and needs to be addressed since some of the criticisms of the CCJ might well be questionable.

The other issue relates to having a referendum as a tool for determining peoples’ preferences. Unless an effort is made to allow parliamentarians and politicians generally to vote and campaign according to their consciences and not cling to party positions, the result would always be politically partisan. Or, perhaps, get the parties to arrive at a common position which they then take to the electorate. A referendum is supposed to be the ultimate in democratic governance, but as practised, it becomes clothed in partisan political garments. Even when independent voices emerge, they are considered echoes of one or other of the parties. Our efforts to have our own final court of appeal will fail unless we listen carefully to the voices of the people whose perception is their reality.       
 
Dr Adrian Fraser is a social commentator and historian