The Caribbean Court of Justice recently held its first meeting outside Trinidad, hearing the case of a young Jamaican woman allegedly assaulted by Barbadian border officials, and it was generally judged a success. In another development, a former Attorney General and Chief Justice has also revealed that it is his intention to put his side of the case why the late prime minister David Thompson refused to extend his term as the nation’s top judge.
Two events linked through David Simmons, the former AG’s push for the formation of the CCJ and the almost religious fervour in which the new nationalism, as reflected in the senior judge’s comments about the high level of presentation before the court. The CCJ judges, in summing up the success of the hearing, reportedly compared the high standard with the Privy Council and complimented the various attorneys on how well they presented their cases. It was rather strange comment, given that what he was in fact doing was complimenting them on their presentational competence, which I shall return to later.
However, this competition with the former colonial masters runs deep in contemporary Caribbean intellectual and professional discourse. Two examples remind me of this. I remember a Trinidad-born, Britain raised friend and I spending a long social evening in the company of a leading Barbadian legal beagle and his wife, and the conversation being dominated by this lawyer comparing himself with the Australia-born, Britain-based leading QC Geoffrey Robertson, a highly reputable radical lawyer and author, but nothing to write home about. Until then, I had made the obviously silly assumption that this particular Barbadian lawyer/politician, London-educated, was one of the brightest and best of his generation, full stop. It was only his clear insecurity that raised doubts in my mind.
Another minor event also comes to mind, the visit by Sir Henry Forde and his commission to London during the inquiry in to the call for the removal of the Queen as head of state and the creation of a President – another issue that seems to take up too much of our time. I remember it well because I was one of those, encouraged by some in the audience, who gave evidence to the commission at the Lambeth Town Hall in South London. When the written report came out I felt it had misrepresented the views of Barbadian Londoners, and in particular that meeting, since it seemed to suggest we were broadly Royalists. Again part of the rhetoric of that meeting was the comparison with the former colonial masters. Together these events point to a people shadow boxing with themselves.
Now let me outline the democratic deficit at the heart of how we are governed and which I believe is a major barrier to the way we develop as a group of small self-governing nations. In Barbados, at community level, we have the constituency councils, all appointed; then we have the parliamentarians, elected every five years; the Upper House or Senate, again all appointed, in the main along party lines; then there is an unelected Caricom – organised around ministerial and senior civil servant levels. The advocates of the Westminster/Whitehall model should hold their heads in shame at making this comparison.
I know two much respected friends, both on constituency councils, who believe there are a much needed part of our ‘democratic’ institutions. But the constitutionality of the constituency councils goes much further than who makes the appointments and who are the people appointed. What are the responsibilities of the CCs and who do they represent? If they have municipal responsibilities, part from making recommendations, what are they? If they represent constituents, then what is the role of the elected parliamentarians? Or, if they are just vehicles for the ruling party to dish out largesse to lesser party functionaries, then is this an abuse of process? There are the constitutional issues, over and above the decentralising role that CCs could play. For example, taking primary responsibility for social care, education, street lighting, policing, planning, social welfare, street cleaning, and so on, removing the over-arching hand of central government in the micro-management of these services.
Founding the CCJ:
To return to the appellate functions of the CCJ, the national courts should be the court of first instance and initial appeal, with the CCJ being the appellate court on civil and criminal matters on points of law, property rights, constitutional issues, contract law and human rights, only from jurisdictions that accept the full authority of the court.
So, in regard to the proposal from Trinidad, there would not be a facility to mix and match which part of the CCJ jurisdiction a member-state is prepared to accept, with the proposal by prime minister Persad-Bissessar that she would accept the jurisdiction of the CCJ for criminal matters, but maintain the Privy Council for civil matters. It should be all or nothing.
First, it confirms my suspicion that the barbarism in Caribbean jurisprudence has no time for mis-carriages of justice, and more so, the uncivilised urge to ‘pop’ necks. Hanging people, innocent or guilty, is a favourite conversational piece of many Caribbean people. Creating the building blocks of a new judicial system was an ideal opportunity to look at the entire system of jurisprudence, including the history of our cultural-legal practices and what advantages they bring to the governance of Caricom/CSME citizens. As it happens, it looks as if the chance has been missed. As I told an audience discussing this very matter in London some time ago, the first stage in creating the CCJ should have been establishing the court as final authority in civil matters, since this will in time prove to be its most important contribution to Caribbean unity.
This will, of course, go far beyond the narrow restrictions of the old West Indian Court of Appeal, or any other regional appellate court.
The second restriction that should have been imposed, should have been to give a right of audience only to senior lawyers. In fact, it is arguable that in no case should junior attorneys have a right of appearance before the CCJ; if it is a case in which the court is one of first instance, then it should be of such constitutional or legal importance that only senior counsel should be putting the case; if it is a constitutional or one of case of final appeal, then the same applies. The argument in favour of having senior advocates or Queen’s Counsels, rather than junior lawyers, appearing before the court, is that the required skills will be totally different.
Whereas in a court of first instance forensic skills, such as cross-examination, are the dominant techniques of a successful defence (and prosecution) lawyer, in the hybrid constitutional/human rights court, the key skills will be, apart from detailed knowledge and familiarity with legislative and case law, those of structuring an argument and subject knowledge. Since there is not a jury, the drama of presentation, the flamboyance of cross-examination and playing to the gallery would be needless.
On another point, unlike the recently established England and Wales Supreme Court – the Americanisation of UK justice – which has set down a rule that judges must have been on the bench for a minimum of two years or a barrister for 15 years before they become eligible to sit as a Supreme Court judge, the CCJ apparently has no such rule. I think only senior national judges should be eligible to sit on the CCJ.
The other missed opportunity was that of deciding between an adversarial and inquisitorial system of evidence-gathering and testimony – between the old English common law methodology and Roman law. That they have opted for the adversarial method is proof that they have decided to stick to the system inherited from the British and with which the majority of justices and attorneys were most familiar.
Analysis and Conclusion:
As I have pointed out, Caribbean intellectual and professional discourse is a contest between the old colonial masters and the new generation. It need not be so. Clearly Caricom/CSME/CCJ should be (is) more than just a legal structure; it should be more importantly about forging a unity between nations that share one fundamental thing in common: our experience of chattel slavery. Caricom as presently constituted, has failed this test.
The other major barrier to progress within Caricom, is that smalltime politicians, who have lost an significance on the global stage, have retreated in to micro-managing their citizens and have, in many ways, opted to use the civil and criminal justice systems as weapons of repression. This is reinforced by the CCJ and its senior judge comparing counsel and their well honed presentations with the Privy Council and, presumably, the lawyers who appear before this august body. It is an expression of uncertainty.
I have said, and still believe, that the principles informing the founding of the CCJ were fundamentally wrong because they basic premise was wrong. Instead of replacing the Privy Council, mainly because it upheld the appeals of young men (mainly) condemned by their national courts to hang, I suggested that what was really needed was a constitutional court, since the CCJ would be the most important institution in Caricom and a final tribunal for commercial conflicts. Apart from the fact that the CCJ, without the support of leading members of Caricom, had in reality reduced the regional organisation to a two-speed one, with those who backed the court and those who have not, has inflicted a perceptual damage on the body.
(The other minor thing of course is that the decision to base the CCJ in Trinidad after the twin-island Republic refused to join was reckless. Barbadians have a right to ask how much it costs taxpayers and how many jobs sit has created in Trinidad).
More important, in terms of judicial responsibility, the weakness of the CCJ as presently structured has been exposed by the Clico scandal, the border conflict between Trinidad and Barbados, to give but two examples. On the substantive issue, the lack of a Caricom-wide financial services regulatory body, exposed by the differences in approach to dealing with Clico – the St Lucian, Guyanese, Bahamians and Barbadians all dealt with the issues differently, us another underlying weakness. This was not just because of a lack of harmonising regulatory regimes, or primary legislation, nor indeed a structural problem of having a super-regulatory body overseeing Caricom financial markets, but because of the tension which exists in West Indian affairs (see Trinidad v Barbados, various fishing disputes between Barbados and Trinidad, the silly row over whether a Jamaican national was assaulted by Barbadian border officials, and more) which militates against reaching amicable agreements on basic matters.
The net result of the democratic deficit in our governance, of which the CCJ us just a manifestation, is a corrosive effect that undermines our public life and our public values. This can vary from some individuals and families being virtually untouchable when it comes to the enforcement of the law, to people being escorted off planes like papal dignitaries, to the sons and daughters of the political and social elite getting more than their fair share of advantages when it comes to jobs and opportunities. Most corrosive, however, is that normal everyday people begin to believe that this toxic situation has always been and ever will be. There is an inevitability about it. Our post-independence public life has been contaminated by this normalised corruption.