Access to justice: arrogance or irony?

THOSE WHO were tasked with developing the provisions of the independence constitutions of Grenada, Antigua and Barbuda, and two other CARICOM territories have some explaining to do. These are the only independent countries among the 50 former colonies of Britain whose constitutions have required a vote – in some cases a two-thirds majority vote, to boot – in a referendum to delink from the Judicial Committee of the Privy Council in the pursuit of completing the circle of their independence.

As a result, history now records that St Vincent and the Grenadines, Grenada, and Antigua and Barbuda – three Caribbean countries – have been the only former British colonies from anywhere across the globe to have moved to cement their hold on to the jurisdiction of the Privy Council by means of a general vote of their population. Propelled by sound principle, no other country has even sought to attempt that route, much less entertain the possibility of such an outcome – not one of the several former colonies in Africa or Asia; not Canada, Australia or New Zealand.

HISTORY

And, certainly, it cannot be successfully argued that the need for that kind of constitutional requirement stemmed from the history of the majority of their people, whose ancestors had been forced to occupy this Caribbean space. For the constitutions of Guyana, Barbados, Belize, and Dominica, all already having subscribed to the full jurisdiction of the CCJ, and Jamaica and Trinidad and Tobago contain no such provision. So, where did it spring from?

The irony is that some of our Caribbean people, egged on by some of their political leaders who seem to have forgotten that long struggle for political independence on the part of their visionary predecessors, without the need for the holding of referenda, have now exercised their franchise, seeking to retain legal links with the United Kingdom by continued use of the court that was established in 1833, specifically as the guardrail of rule from Westminster over the colonies.

Another irony, of course, is that the outcome of that referendum vote cannot be enforced by the leadership in St Georges, Kingstown, or St Johns. It does not lie within the power or gift of the authorities in those capitals. That power lies in Whitehall.

And this is after the person in charge at Whitehall, the president of the court, had openly advised the world that they would wish the independent countries of the Caribbean to allow their judges in the UK to employ their judicial time in deliberating upon matters of interest to their own people.

Certain persons in political leadership in Jamaica have gone much further. They have insisted that an unrequired referendum should be held, and so serious are they about that position that they have been willing to risk breaching our Constitution to preserve it. And after the president’s declaration, they managed to extract from the registrar of the president’s court assurance that Jamaica would be allowed continued access.

And those among us who have refused to embrace the fact that referenda, without fail, easily ripen into partisan political exercises, have now heard it from the opposition leader in Antigua and Barbuda. He is reported as telling all who would wish to hear that his campaign message to the members of his party and others concerning these monumentally important issues relating to access to the final appeal court for his people was: “This is a referendum on the (prime minister)”.

So it was with the Brexit referendum: the political leaders did not tell the electorate the whole truth. A worthwhile study could perhaps be undertaken on ‘Reflections on Referenda within the Westminster System of Government’. There is a strong school of thought that they do not sit well together.

This last! It is widely accepted at the highest levels of global expertise that the Agreement Establishing the Caribbean Court of Justice is a document of high quality. The final place of refuge for the constant critics of the CCJ, all of whom studiously and stubbornly forever ignore the allencompassing element of access for our people, appears to be their stated strong disagreement with the provision in the agreement for its president to be appointed by the heads of government of CARICOM, who are politicians.

In fact, though, that is not the full story. The heads can only appoint an aspirant who has been interviewed and recommended by the Regional Judicial and Legal Services Commission, a body that has clearly commended itself to the critics, it being bereft of politicians.

And, importantly, the word ‘appoint’ in that provision is there used in the strict administrative sense. In effect, however, the exercise itself is guided by the imperative that they are empowered and obliged to act only on the recommendation of the commission, so that if they decline to appoint someone, for example, they have no choice but to await another recommendation; they cannot substitute someone of their own choosing.

ANOTHER GROUP

There is another group of persons, who, no doubt, have some explaining to do. These include political leaders who have trusted themselves to be at the head of government in the region but do not trust and value the competence of their Caribbean brothers and sisters to be at the head of the judicial system.

Also included among that group are some who seek to be head of government. Some may be captains of industry and there are others who seek the headship of other sectors. They amazingly, see themselves as armed with the competence and integrity to be at the helm of those high positions of power and governance in our Caribbean society, but for them, leadership in the judicial system and access for our people to their final appeal court should be as far away from us as possible.

Some would ask: Is that arrogance? Or is it irony of ironies?

A.J. Nicholson is a former attorney general and minister of justice. Email feedback to columns@gleanerjm.com.

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