Dr. Fraser- Point of View
February 11, 2005

Challenges to Caribbean Nationhood

The road to what I call Caribbean nationhood is never an easy one as obstacles continue to pop up in the search for the identity and unity of Caribbean peoples. Two symbols of Caribbean unity are expected to be launched this year, the Caribbean Single Market and Economy (CSME) on February 19 at the new CARICOM headquarters in Guyana. In April attention will be turned to the Caribbean Court of Justice (CCJ) which will be inaugurated at its headquarters in Trinidad. {{more}}Unfortunately participation in both entities will in the early stages be limited. Only three countries are likely to sign on to membership of the CSME, with others, hopefully, following later. Among these is St.Vincent and the Grenadines whose Prime Minister Dr. Ralph Gonsalves has set 2005 as this country’s target date. In April when the CCJ is launched it is expected again that only a few members would be taking the plunge. But with the latter other snags have appeared.

The Caribbean Court of Justice

On February 3 a ruling of the Judicial Committee of the Privy Council has dealt a serious blow to the process of formation of the CCJ. According to my understanding of the ruling the three bills passed by the Jamaican parliament to facilitate its membership of the CCJ have been declared unconstitutional. The ruling is to the effect that the bills have to be entrenched in the constitution since failure to do that would undermine entrenched provisions of the Jamaican constitution. This ruling was in response to an appeal submitted by a grouping of Jamaican organizations- the Jamaica Labour Party, the Bar Association, the Independent Council for human rights and the Jamaicans for Justice human rights group. What this ruling has done is to stall the implementation of the CCJ in its appellate jurisdiction. The Trinidad and Tobago parliament has even passed a bill giving the CCJ only the right of application in its original jurisdiction. This issue is further compounded by the fact that three countries, Belize, Guyana and Barbados have already achieved parliamentary approval for the Court to function in its two jurisdictions.

Given the ruling of the Privy Council and the decision taken in Trinidad and Tobago, the Court will have to function initially only in its original jurisdiction where it will adjudicate on matters pertaining to the Caribbean Single Market and Economy. I have some concerns about this for I do not anticipate that in its early years there would be a lot of appeals relative to the CSME. Since this will be the sole basis of the Court’s operations what are the judges expected to do? Maybe there is a simple answer to this? I do not know.

Opposition groups, including the bar associations in Jamaica and Trinidad and Tobago had long been calling for a special majority instead of a simple majority to sanction such a far reaching step as the replacement of the Privy Council as the final Court of Appeal. The matter of a referendum has also arisen, particularly in Jamaica. Jamaica’s history of referenda is not one that will encourage the Government to want to go that way. Perhaps the way around this necessitates meetings of the different players, members of the Opposition and Government and other relevant bodies to agree on the process. Despite not being a legal person or rather a legally trained person since I am indeed a legal person, I am compelled by the logic and common sense of the Privy Council’s ruling. Again my understanding from the discussions that were sparked off by the ruling is that although Jamaica’s right of appeal to the Privy Council is not entrenched in the Jamaican constitution because the Court of Appeal is entrenched, the CCJ also needs to be entrenched, providing in the process security of tenure of judges similar to that of the Supreme Court and Court of Appeal. One of the issues, therefore, that was prompted by the ruling of the Privy Council is to the effect that even with appeals to the Privy Council not being entrenched in the Jamaican constitution it might not be possible to alter that section without affecting the entrenched sections of the constitution. Clearly this is an issue that the legal minds would ponder on.

I must at the same time reject those views that are based on the ridiculous position that the Privy Council is a fountain of morality and of non-partisanship. Peter Espuet, writing in the Jamaica Gleaner suggests that “At least at the JCPC (Judicial Committee of the Privy Council) justice appears to be done because their judgments are manifestly free of partisan considerations.” This is absurd and reflects something that still runs deeply among us. In the struggle for independence there were those who argued that the Queen represented the fountain of justice and was a protector against all sorts of ills, political and other wise. Some of us still look outside for that kind of protection. Like other persons the lords of the Privy Council or whatever they are called, carry partisan positions like anyone else and of course, these partisan positions do not have to be political, they can for example be class based.

Two other matters pertaining to the Caribbean Court of Justice have to be mentioned. First the statement by Kamla Persad- Bissessar of Trinidad and Tobago, a former Attorney General, that there are no Indians listed on the first panel of judges. Give me a break! What next! Would individual countries be saying that they have no representatives on the panel? Would other groupings be saying the same thing? Are we into affirmative action on this matter? This symbolises some of the problems encountered with the movement for a coming together of Caribbean peoples. Additionally, Queen’s Counsel Bert Commissiong seems not to be pleased with the calibre of some of the judges. To a layman this is a serious comment coming from one within the profession because the expectation was that the Caribbean would have put its best foot forward given the fact that there are still among us those who question the intellectual capacity of our peoples.

I want, at this point, to join others in congratulating Justice Adrian Saunders for his elevation to the CCJ. This is testament to his integrity, intellectual capacity and humility. His rulings during his short period on the Bench have been highly acclaimed. Justice Saunders is still a young man and we expect to hear a lot more from and about him. I expect that one day he will assume the position of President of the CCJ.