CARICOM And Constitutional Reform

By J. K. Roberts

Press Release #112/2012 from the Secretariat of Caricom in May of 2013, on the judgement of the Eastern Caribbean Court of Appeal (ECCA) in respect of the process to be followed by St. Lucia to provide for the Caribbean Court of Justice (CCJ) as that country’s final court of appeal, would have left more ‘sour taste’ in the minds and mouths of conscious persons on the ‘modus operandi, sentiments and expressions’ of Caricom. Two main points purported as the Conclusion of the ECCA, which the Secretariat unreservedly welcomes, are highlighted in the Release; that is, the St. Lucian Constitution clearly contemplates and provides the freedom to St. Lucia to establish a court in common with other states or countries and that St. Lucia was empowered to enter into such an agreement on its own and the relevant Bill would not be subject to a referendum. The Release also tends to reiterate confidence in the CCJ by the Secretary-General of Caricom, and makes reference to the move by Prime Minister Roosevelt Skerritt of Dominica seeking permission from the British Government for Dominica to sever ties with the London-based Privy Council in order to join the CCJ.

What really is been implied by the ECCA about the freedom of St. Lucia to make changes to its Constitution and also by Secretary-General Ambassador Irwin LaRocque that the judgment of the ECCA is a seminal one in the progress towards more countries accepting the appellate jurisdiction of the CCJ? Virtually all of the Independence Constitutions of the Commonwealth Caribbean countries has this freedom enshrined but this provision by itself is not ‘straight and sufficient’ for accepting the CCJ whose role may not be in question; freedom is not ‘absolute’, without qualifications and conditions. The essential issue is not merely about ‘freedoms and rights’ for Constitutional Reform but it should also be about ‘appreciation and responsibility’ for proper procedures and for the dignity of the masses.

There is nothing which is special, substantial, strange nor spectacular about the Press Release. It would have been much better for the entire ECCA Ruling be placed on the Internet in the public’s domain, in an effort to educate the masses towards making informed decisions on the Issue. In fact, good intention on the part of the Secretariat of Caricom should be to have it directing all of its Member-States to establish websites with their national constitutions for the familiarisation and perusal of all; and especially to have the provisions dealing with the Judiciary and the Final Appellate Court, as well as the prerequisites for Constitutional Reform, critically and objectively commented-on by intellectual persons. Above all, the public must not be misled by the Release since, as it is understood, the ECCA Ruling is of a ‘legal opinion’ which is not from a Court debate.

One would further wonder if Caricom, the ECCA and the Government of St. Lucia have not read the Ruling of the Privy Council in February 2005 on the passing of ordinary legislations to have the CCJ as the Final Court of Appeal in Jamaica and also have not studied the professional reviews on the verdict, as well as other pertinent presentations such as the one done in May 2003 by Attorney Donovan Jackson of Jamaica entitled Privy Council Wins Appeal?, who examines, advises and writes extensively on matters of Appeal Courts, the CCJ and the Privy Council (jamaicansforjustice.org). Where are the well-researched analytical papers by Caricom’s Legal Affairs Committee, on the scope and significance of these developments and positions?

It sounds rather ludicrous to promote, after over three decades of ‘sovereign governance’, that a constitution is in error; notwithstanding that with most arrangements, provisions, rules and transactions, faults are usually discovered only upon its implementations. But even if an opinion is been sought on any possible errors in the constitution, the ‘courteous and meaningful’ thing to do is to return to the ‘negotiators and framers’ of that constitution, as the Supreme authority for rationales and redress. The Independence Constitutions have been declared and regarded as being ‘sacrosanct and final’, although they are subject to changes upon strong ‘arguments, convictions and determinations’. It is highly unlikely for errors to be associated with the contents of the Constitutions, as opposed to deficiencies and weaknesses which would occur in them. Issue of errors with the Constitutions will result from the interpretations and applications of the provisions of the Constitutions. Anyhow, it would be interesting and instructive to be aware of any court judgement concerning any error in a national constitution within the Commonwealth Jurisdiction; and even to ascertain the errors, barriers, or reasons which would inhibit Constitutional Reform for such a country.

In giving the impression that indeed an error exists in the St. Lucian Constitution and that a referendum is not necessary for St. Lucia’s accession to the CCJ, the ECCA would have bypassed deliberations as to whether or not a referendum is required in the process of correcting that error. Any amendment in the Constitution, even in the form of a correction to a judicial or an administrative error, needs the understanding and support of the masses. Moreover with the revelation of the error, it is now incumbent on and opportune for the peoples of the Caribbean to scrutinize their various Constitutions for any irregularities, inconsistencies and loopholes which would have being robbing them of Good Governance. In fact, the late Constitutional Law Professor, Grenadian Dr. Simeon C. R. McIntosh widely published and defended the view that although the Commonwealth Caribbean has Republican Constitutions, for the most part this status is not reflected or is not realised in the system of governance being practised.

On the related matter, it is puzzling as to why and how and to what extent that “the Constitution of Dominica calls for a negotiated departure with the British government”, which is virtually about the freedom to change the Constitution, and that “if that is done it will not require a referendum” for that country to accede to the CCJ; statements by Prime Minister Skerritt in January 2013. Later in the same month, President of the CCJ, Sir Dennis Byron, expanded the Prime Minister’s statements by explaining that a bill must be presented to Parliament and supported by at least three quarters of Members of the House to confirm Dominica’s membership of the CCJ. Sir Byron anchored that the British Government has given many assurances that it will not stand in the way of Dominica’s plan to join the CCJ or in fact any Caribbean country and that it will agree to the abolition of appeals to the Privy Council once a request is put before it. This ‘peculiar situation’ concerning the Dominican Constitution presents another eye-opener for the peoples of the Caribbean, in reviewing their Constitutions.

Within ‘international politics and global dynamics’, there would be limitations in the exercise of Sovereign power which may even compromise the interest and welfare of the public, but to have an Independent Government saying that it have to negotiate with an external Authority or Government on its intention about its final judicial Court is appalling. What form will this negotiation take and what agreements are to be arrived at? Will the negotiation entertain divergent views, or bipartisan representations? Will the CCJ enjoy entrenchment status in the Constitution? Whatever the reason, form and result of the negotiation for accession to the CCJ, an issue of great constitutional impact such as the administration of Law and Justice must have the consultation with and the consensus of all of the citizens and this should definitely call for a referendum.

Caricom must not be seen as searching for the ‘easiest way’ to impose the CCJ on the peoples; this action would prove contrary to the ‘foundational principles and objectives’ of Caricom itself, as encapsulated in its logo. Whilst “True Caribbean Jurisprudence” is an honour to be achieved, it is not to take priority over Social Justice and Economic Prosperity at this time but it must evolve to worth its salt. The final decision on the CCJ does not rest with the politicians whose role should be to facilitate the ‘due process’ for that decision by the peoples. According to Sir Ronald Sanders, a former Caribbean diplomat, in his July 2013 public commentary, CARICOM at 40: An alternative agenda, “many reasons have been advanced for the failure to embrace the CCJ but the root causes are undoubted pandering to insular nationalism and inaction by the powers-that-be to allay fears and build confidence in the Court”. Caution must also be taken that this “insularity” will not affect Universal Justice.

The irony and deceitfulness in the one-sided approach taken for the CCJ, surface when considering that the process over how the Independence Constitutions were delivered to the Caribbean has been condemned by radical activists and professionals; that is, for most part, those Constitutions were imposed without ‘domestic sanction’. As a genuine concern, Professor McIntosh who advocated passionately and profoundly for rewriting and remodelling the Caribbean polity, expressed in his 2010 Draft Constitution for Grenada that with each vote of approval in a referendum the citizen appends his or her signature to the final text. The Caribbean acceding to the CCJ is a fundamental aspect of this ‘constitutional change’, and a Public Referendum will not only give legal approval and enactment, but will also register the ‘authority and ownership’ of the peoples, on the Reform.

A Public Referendum can be considered to be the ‘most excellent means’ for the exercise of Participatory Democracy and People Power, and a referendum on the Constitution is the ‘noblest referendum’ that a country can hold; no institutional authority should ignore this fact and so deny the people the opportunity. It gives the people the ‘direct choice to decide’ on a very significant and far-reaching national issue, which is outside of the mandate given to their elected Parliamentary Representatives. A ‘majority approval’ of whatever proportion in Parliament, even with the support of the Official Opposition, can not suffice nor be a substitute for a referendum which must be properly and meaningfully executed. Pointedly, a referendum on the regional CCJ would bring a high measure of ‘respect and rigidity’ for the Judicial System; it is one thing to secure the ‘integrity and capacity’ of the CCJ but it is another thing to have access to justice left to the whim and fancy of partisan politics in the individual countries.

The Secretariat of Caricom will be exhibiting a ‘good service’ by promoting the importance for a Referendum throughout its Member-States, as a way to reconcile differences on the CCJ; the financial cost for doing so should not be a problem. Despite the ‘political hesitations’ which takes place in Trinidad and Tobago and in Jamaica on the matter, there is much appreciation for the consideration of allowing the local populations to decide, even though there is apparently no constitutional requirement for a referendum in these countries. The avoidance from conducting a referendum speaks volumes about the stance of the Regional administrators and leaders regarding the peoples and their developments. How could the politicians boast of the ‘consciousness and education and wisdom’ of the peoples, but cannot trust them to use their democratic right and intellectual capacity to define their governance? In times of social problems in the Society the politicians and governments resort to the peoples for ‘advice and assistance’ and so too when there are economic woes the peoples are called upon to exercise ‘tolerance and sacrifice’, but to ask the peoples to respond on a fundamental constitutional provision the politicians and the governments are uninterested and/or are afraid. Cynicism against Caricom is therefore inevitable, even with forty years and counting of its existence!

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