Geof BrownWHEN I last wrote about the Caribbean Court of Justice furore, I claimed to have an open mind, unresolved on the contentious issue. I expected almost no one to believe me. Since that earlier article (Gleaner, December 1), a virtual bandwagon of pro-referendum proselytes and supporters of the referendum call have swollen the call to a growing crescendo. To be instantly popular, all a commentator such as myself has to do is join that chorus. It is a little too easy to do that. So I have tried instead to educate myself on the pros and cons and invite readers to share my reasoning and conclusion.
The first 'misted' fact that became unclouded for me, is that a referendum now would not, indeed could not, be a vote for or against the Caribbean Court of Justice. At this time, nations belonging to CARICOM are engaged in signing a document of INTENT (my emphasis). They are not engaged in signing off on the final establishment or non-establishment of the court. This may seem like semantic double-talk, for isn't signing the intent as good as agreeing to establish? Well, not really.
Why not? The answer is in the second de-misting of another reality, that is, the ratification process. It doesn't matter if this or any government signs off on an intent to establish the Caribbean Court, a successor government or even the signing government itself, may later refuse to ratify that intent.
We have seen heads of government sign intentions to enter treaties, only to be reversed when the full slate of elected members fail to ratify.
That reality leads to the third de-misting of the fact concerning the timetable for establishment of the court. Ratification will have to await a number of preliminary steps before the court is ready for formal establishment. According to the government standard-bearer, Attorney-General A. J. Nicholson, there are some 11 steps of various legal imperatives which will take up to four years before the court can be established.
I am not sure at what precise juncture the ratification will be called for. But it is clear that the life of the present government will expire before the court can be established. That means if the present Opposition forms the next government, it can simply refuse to ratify; the Caribbean Court would then have to proceed without Jamaican participation. It is even possible that if the present government succeeds itself, it could change its intention along the way and decline to ratify. Remember Grantley Adams and our turn-back from Federation?
The reality of ratification is the fourth de-misting of the facts in my self-education. But there are other considerations which were not cloudy at all. One is the matter of de-linking from colonial ties of all kinds. I am strongly persuaded by the argument that cutting ties with the Privy Council as our final court of appeal is a natural and logical step in the de-linking process. In other words, when we cut the umbilical tie with what was the 'Mother Country', we set the stage for cutting all dependency ties.
The logic of this is supported by the experience of other countries of the Commonwealth which were former colonial dependencies of Great Britain. I am reliably informed that not one of the 54 Commonwealth countries which have de-linked and abolished appeals to the Privy Council, did so by referendum. In short, the child grows to adolescence and then adulthood, assumes responsibility for itself, and no longer needs its parent's permission or approval to manage its own affairs, warts and all.
Another consideration is that of access to justice. The proposed Caribbean Court (if Jamaica ever gets around to joining it) will be an itinerant court visiting the Caribbean member countries the way that our own Circuit Court now visits the parishes. I fail to see how this would not improve the access to greater justice of ordinary citizens who may not at all be rich (or have altruistic lawyers) compared to the rather limited access afforded by the Privy Council immovably seated in Britain. And in reference to that reality, I concur with the observation that the Carib Court would ipso facto confer more rights on citizens than deny them rights.
A third consideration is readiness. Most persons and organisations calling for a referendum declare that they are in favour of the Carib Court in principle at least, but that our ramshackle lower courts need fixing first. That logic would have had the University of the West Indies still in embryo waiting on lower levels of the education structure to get fixed. Indeed, I just heard a replay of an interview with the late Sir Philip Sherlock; he reminded us how that kind of logic led to scoffing at UWI as a possibility in its early formative days.
A fourth consideration is one put forward by Senator Dr. Ossie Harding in the final Senate debate last week. I feel his call for some breakdown of the projected expense of the Court and Jamaica's projected proportion is well justified. The government, since it will be signing on the intent, should have such a projection as part of the necessary transparency and public education.
The political interference matter is, I think, largely disposed of in the proposal to have appointments of judges by a commission. Although it would also be better for the heads of the Caribbean governments not to appoint the Chief Justice, I can't see why it is held that only the Jamaican Prime Minister seeks control by this. Are the other Caribbean heads simply mute slaves of the Jamaican P.M.?
Well, you probably guessed by now that the unclouding or what I call the 'de-misting' of some of the facts in contention, plus examination of other considerations, leave me unexcited about a referendum at this time, which would more likely just be a popularity contest. But by all means, let's have it when it's time for ratification and entrenchment of the Court. It might be a more honest reflection then and in any case, will then be a must.
Geof Brown is an HRD consultant who lectures part-time at the UWI, Mona. He may be contacted at e-mail: browngeof@hotmail.com
