CCJ victim of myopic politics

ALTHOUGH DISAPPOINTED with the outcomes, we are not overly surprised that majorities voted no in this week’s plebiscites in Grenada and Antigua & Barbuda on whether those countries should accede to the criminal and civil jurisdictions of the Caribbean Court of Justice (CCJ).

For mobilising support around any issue and having that consensus translated into votes at the national level isn’t an easy feat in the best of circumstances. It is far more difficult in fractious democracies, such as those in the Caribbean, when supermajorities are required for the proposition to be approved and opportunistic politicians perceive, in the exercise, an opening to thwart their opponents, especially government.

In other words, in our environment, referenda tend to be manipulated into tests of the popularity of governments and opportunities for opposition parties to gain bragging rights rather than for citizens to declare on the substance and merits of the issue at hand. Which is what, to a large measure, occurred in the Eastern Caribbean on Tuesday.

The CCJ, at one level, is an international tribunal that interprets the Revised Treaty of Chaguaramas, which underpins the Caribbean Community (CARICOM), a single-market arrangement of 15 regional countries, including Jamaica. It is, also, in its civil and criminal jurisdictions, a court of last resort for CARICOM members, most of whom retained the Privy Council, a colonial inheritance from Britain, as their final court.

There is little doubt about either CCJ’s institutional insulation from political manipulation, and, therefore, its independence, or the quality of its jurisprudence during its decade of existence. Its ruling in the Shanique Myrie case, for instance, which sets out the minimum obligations of CARICOM to regional citizens who enter countries, was not only a landmark development, but began the process of establishing a body of community law.

But while membership of CARICOM makes signing on to the court’s original jurisdiction obligatory, only four countries – Barbados, Belize, Guyana, and Dominica – so far, have it as their final court in criminal and civil matters. The failure of more countries largely rests on partisan political calculus rather than intellectual merit, as was again highlighted this week.

Take the case of Antigua & Barbuda, where Harold Lovell, the leader of the opposition United Progressive Party, gloated over the defeat of the proposition and the fact that the ‘yes’ vote represented only around 37 per cent of the ballots cast for Prime Minister Gaston Browne’s Antigua and Barbuda Labour Party (ABLP) in the general election earlier this year. In that poll, the ABLP won 15 of 17 parliamentary seats.

“This was really a referendum on the prime minister,” said Mr Lovell, who withheld his party’s support for the initiative. Yet, Mr Lovell, formerly a top member of an organisation called the Antigua Caribbean Liberation Movement (ACLM), used to hold himself out as a Caribbean nationalist who railed against so-called neocolonial institutions.

WITHDRAWN SUPPORT

In Grenada, Joseph Andall, the leader of the National Democratic Congress, withdrew his party’s support for a yes vote, complaining that people who drafted the bill were part of an advisory committee explaining its provisions and promoting its acceptance. His stance, it seems, had little to do with the merits of the CCJ or the constitutional amendment bill to make it Grenada’s final court. There were some people in Grenada who had genuine concerns about elements of the proposed law. In retrospect, Prime Minister Keith Mitchell might have postponed the referendum to, insofar as possible, address their issues, although many may not have changed Mr Andall’s political calculations.

It is our strong view that given its political leadership in the region, Jamaica’s accession to the court would be a catalyst for others to come on board. However, Prime Minister Andrew Holness, has, since in opposition, locked himself into a referendum, which isn’t constitutionally required, to determine accession. That position should be waived.

Further, as part of efforts to build consensus around the court, and other issues, CARICOM leaders should revive the lapsed initiative of engaging opposition leaders as part of their annual summit. Indeed, the arrangement should be institutionalised.