CCJ vic­tim of my­opic pol­i­tics

Jamaica Gleaner - - OPINION & COMMENTARY -

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.

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