Farewell to Privy Council? What of colonial Constitutions?

The 54th meeting of the highest institution in the Organization of Eastern Caribbean States (OECS),the OECS Authority, comprising Heads of Government of the member states, concluded in the St Lucian capital of Castries earlier this week. The meeting, held under the chairmanship of Dr Kenny Anthony, who was only last month returned to the helm of the government of his country after one term in opposition, discussed a number of issues pertinent to the integration process in the Eastern Caribbean.{{more}} Among these were the Caribbean Court of Justice, the proposed Regional Assembly of Parliamentarians and a proposal for a Regional Consultative Forum for discussions between the public and private sectors on regional development issues.

In a sense, there is some connection between the Regional Assembly and the Consultative Forum, both representing initiatives to try and broaden the discussions on regional integration in the Eastern Caribbean states and their paths to economic, social and political development. They bring to mind the most significant of the all-too-many ill-fated attempts at forging regional unity, the Regional Constituent Assembly, pioneered by Sir James Mitchell in 1987. That initiative had attempted to go beyond the rather limited closed-shop approach restricted to Governments, with a peep-in for the Parliamentary Opposition, by devising a broad-based discussion mechanism, providing space for non-Parliamentary political parties and significant interest groups. Unfortunately, as a people, we were not able to rise above our disagreements and a potentially worthwhile venture, in spite of its limitations, floundered like many before it. Our politicians have not had the courage to go down that road again.

The Revised Treaty of Basseterre (2010) sets out the main institutions and organs of the OECS. While shying away from a political union, it establishes a number of these mechanisms aimed at furthering the integration process in our region. Among these instruments is a proposed OECS Assembly, to be made up of Parliamentarians from the member states. According to the Treaty, each independent member state (Grenada, St Lucia, Dominica, Antigua/Barbuda, St Kitts/Nevis, and St Vincent and the Grenadines), is to have five Regional Parliamentarians, drawn from both Government and Opposition, in proportion to their representation in their respective Parliaments, while non-independent member states will each have three representatives.

The pity is that even while trying to move forward, the OECS leaders still seemed trapped in the old straightjackets, which confine meaningful discussion among a political elite. The barebones Government and Opposition formula does not take us out of the partisan confrontational mode in which our politics is stuck and all we are likely to get is a regional version of the partisan charades which persist in the national Parliaments. Could they not have envisaged the participation of the major social and economic groupings such as the trade union movement, the religious community, the private sector, and representation from the farmers’, youth and women’s sectors? Would this not have allowed for non-partisan views in the proposed Assembly? Even the political knights, Sir James Mitchell and Sir John Compton, and their colleagues, went beyond this narrow prescription more than two decades ago in the aforementioned Regional Constituent Assembly.

One of the most significant collective decisions which emanated from the St Lucia meeting was the announcement that:

“All member countries of the OECS are committed to acceding to the appellate jurisdiction of the Caribbean Court of Justice (CCJ) within the shortest possible time….” (Communique, 54th Meeting of OECS Authority).

While there is that commitment, there is not a common timetable, the reason being that there are variations in the constitutional provisions of the respective member states. Thus, the common view was that while most member states will have to do some constitutional ‘homework’ and adjustment, St Kitts/Nevis and Dominica “are best placed constitutionally” to accede to the CCJ’s appellate jurisdiction “during the course of this year”.

Much has been said and written about the absolute need for Caribbean countries to shed the colonial juridical robe of the Privy Council and Britain itself has plainly indicated that it wants to be rid of that appellate function for its highest court. Yet we continue to make all kinds of excuses and to cast a cloud over the integrity of our own legal luminaries. The announcement by the OECS Heads is therefore a most positive one which ought to be embraced by us all. It comes on the heels of a similar announcement by Jamaican Prime Minister Portia Simpson-Miller, returned to office in a like manner to St Lucia’s Kenny Anthony, that Jamaica is also to pursue this course of action.

Even as I enthusiastically applaud the Heads, I wonder if the opportunity could not have been taken not just for constitutional amendment re the Privy Council/CCJ, but for a much wider joint approach. It is true that our Governments are wary of going down the referendum road, particularly after the “egg-in-the-face” experience of the Gonsalves government, defeated in a constitutional referendum in 2009, but we cannot indefinitely postpone our constitutional emancipation.

While it is a requirement that individual countries will each have to put the issue before its electorate, that does not rule out a joint approach. The proposed Regional Assembly, if broadened, and the Consultative Forum, can, with some imagination, be used as mechanism for a regional discussion on our constitutional deficiencies and political limitations. In fact, a regional approach may well help us to circumvent the problems of blind partisanship. After all, the constitutions of the OECS member states are fundamentally the same, they have a common experience and similar needs.

Concluding in this vein, I am elated to note that the chief architect of the failed constitutional process in St Vincent and the Grenadines, Bro. P.R. Campbell, Chairman of the Constitutional Review Commission, has recovered from the disappointment of the referendum defeat. We cannot let that experience be a permanent millstone around our necks. We have to start afresh and pursue our historical task doggedly.

Renwick Rose is a community activist and social commentator.