The Jeff Cumberbatch Column – Exercises in Sovereignty, Self-doubt or Apathy?
“It is offensive to the sovereignty of independent nations and therefore, politically unacceptable, to have a foreign tribunal permanently entrenched in their Constitutions as their final court.” Sir Isaac Hyatali
“…we recommend that appeals from our jurisdiction to the Privy Council should not only be retained but their retention should be most jealously guarded from assault from any quarter, whether or not Trinidad and Tobago calls itself a monarchy or a republic…”Minority Report of the Constitution Commission of Trinidad & Tobago (1974)
Arguments such as that advanced by Sir Isaac Hyatali in the epigraph above to the effect that retaining the Judicial Committee of Her Majesty’s Privy Council [JCPC] as the apical court in an independent regional jurisdiction is offensive to the notion of sovereignty have been forcefully met with the counter that it is equally an exercise in sovereignty to choose to so retain it, since that choice would at least have been effected after due consideration by the sovereign, even though the ultimate disposal of the issue does not accord with views such as Hyatali’s.
Such a thesis would, no doubt appeal to those in the region, such as last Tuesday’s electorates in Grenada and Antigua & Barbuda that were not of the view in sufficient numbers or, seemingly at all constitutionally, to accede to the Caribbean Court of Justice [CCJ] as the final appellate court for their respective jurisdictions.
Those results, though disappointing to this writer, were scarcely unsurprising. In relatively recent times, electorates have arrived at some outcomes that appear to defy the punditry and, in some cases, with all due respect to the so-called “voice of God” theory; common sense. I include among these, the successful Trump presidential candidature in the US, the Brexit yes vote in England and the recent decision of New Caledonia to remain substantially under French rule. We might also wish include here the 1995 decision by the wide margin of three to one of Bermuda to reject independence from Britain, the negative result of the Bahamian 2016 referendum to eliminate discrimination against women and those in the multi-question Grenadian referendum of that same year. I, somehow, had the sneaking suspicion that the two regional referenda on Tuesday would have fitted comfortably into this company. And so they did.
There will be the usual informed and uninformed analyses of what might have gone wrong, but in the immediate aftermath of Tuesday’s twin rejection of the CCJ, there is a sense of weariness and despair that this current regional experiment is now doomed to hobble into the next quarter of this century on the single leg of the four jurisdictions that currently avail themselves of its appellate jurisdiction.
In his essay “Power to the Caribbean people” published in The Aftermath of Sovereignty: West Indian perspectives, edited by Lowenthal and Comitas, the late Nobel laureate, VS Naipaul, offered the following thesis-
These Caribbean territories are not like those in Africa or Asia, with their own internal reverences that have been returned to them[selves] after a period of colonial rule. They are manufactured societies, labour camps, creations of empire and for long they are dependent on empire for law, language, institutions culture, even officials. Nothing is generated locally, dependence has become a habit…
Whatever may be the cogency of this assertion, it must also be recognized that the tawdry element of partisan politics also had a significant role to play in the respective outcomes on Tuesday. There exists a keen tussle between the lawyer and the politician for being considered as the occupation for which the hottest part of Hades is reserved, but that it might have been considered politically prudent and astute to foil the regionalist ambition to accede to our own court in favour of one created for a British Empire on whom the sun has long set, smacks of crass unthinking opportunism.
At a higher level of discussion, I was driven to wonder in a recent conversation as to what might have influenced the negotiations for the final draft of the text of the Schedule to the Antigua and Barbuda Independence Order (popularly referred to as its Constitution) to so deeply entrench the provision for the JCPC as its final court of appeal. Thus, the Antigua and Barbuda Constitution 1981 stipulates, where relevant, at section 47 (5)-
A bill to alter this section, Schedule 1 to this Constitution or any of the provisions of this Constitution specified in Part I of that schedule … shall not be submitted to the Governor-General for his assent unless
(a) there has been an interval of not less than ninety days between the introduction of the bill in the House and the beginning of the proceedings in the House on the second reading of the bill in that House;
(b) after it has been passed by both Houses of Parliament or, in the case of a bill to which section 55 of this Constitution applies, after its rejection by the Senate for the second time; and
(c) the bill has been approved on a referendum, held in accordance with such provisions as may be made in that behalf by Parliament, by not less than two- thirds of all the votes validly cast on that referendum…
Included among the specified provisions in Part 1 of Schedule 1 is that which confers a right of appeal to Her Majesty in- Council, either as of right or with the leave of the Court of Appeal in certain cases. Was this provision resisted at any stage, seeing that the discussions were about the imminent conferral of sovereignty on the former Associated State? Was its implications clearly understood by the national delegation? Was it discussed at all?
Contrastingly, the Barbados 1966 document seems far more concessionary to the state in question concerning its determination of a final appellate court. According to section 86 of the original 1966 instrument-
Notwithstanding anything contained in Part 1 of this Chapter, Parliament may make provision –
a. for implementing arrangements made, between the Government of Barbados and the Government or Governments of any other part of parts of the Commonwealth relating to the establishment of a court of appeal to be shared by Barbados with that part or those parts of the Commonwealth, and for the hearing and determination by such a court of appeals from decisions of any court in Barbados; or
b. for the hearing and determination of appeals from decisions of any court in Barbados by a court established for any other part of the Commonwealth….
It is not immediately clear what might have contributed to this stark difference in the respective texts, except that they are fifteen years apart.
For us, seemingly, the JCPC also existed, though with nowhere near the degree of permanence and entrenchment accorded to that entity in Antigua & Barbuda and, clearly, Grenada.
In 1976, my quondam lecturer and subsequently Faculty colleague, Ms Dorcas White, published an extended essay rhetorically titled “Jettison the Judicial Committee: You t’ink it Easy?” More than four decades later comes the equally rhetorical response, “No, Dorcas, we know it ain’t!”
Whether owed to popular apathy or an antipathy towards the regionally assembled structure, any jettisoning seems a long way off.