Whose court of justice?

It would not be at all surprising if individuals and officials in various parts of the world with whom Caricom countries do business, are asking themselves this question about our region, concerning what they have been led to think is a regional institution, the Caribbean Court of Justice (CCJ). For most public servants are well imbued with the old Latin admonition, Pacta sunt servanda – Agreements are meant to be kept – a fundamental principle of contract law. And we can be sure that many of our prime ministers, including Jamaica’s Bruce Golding – himself once a student of public administration – and Kamla Persad-Bissessar, a long-time attorney of law, are well familiar with the principle.

In principle, too, the above saying is also well known in the world of politics, in terms of the commitments or promises made by politicians, particularly when they feel at their weakest and most supplicatory – that is, during election campaigns – though their electorates are now accustomed to their  cavalier pretence of forgetfulness once victory is declared.

As the excuses fly hither and thither as the day of reckoning has come in respect of the commencement of work in the region as a whole by the Caribbean Court of Justice, many citizens will have been surprised at the nonchalant way in which the governments of two MDC’s have sought to make one excuse after another, in the face of perhaps unanticipated questioning about their non-adherence to the court as a functioning institution within their jurisdictions. It is now six years since the court was inaugurated.

In addition, as many of our states struggle to move forward economically in the face of the present recession, officials in various financial institutions, both public and private, must marvel at the way in which, through the Caribbean Development Bank, the governments of the region will have committed themselves to supporting the raising of funds (US$100M) for an institution which, year after year, they refuse to make use of.

Indeed they, and many Caribbean citizens, will be wondering about the reasons for such strange behaviour. They must be a little bewildered that after committing themselves to the establishment of the institution, and putting their people’s taxes behind it, some governments have taken refuge in a principle: that subordination to the court’s jurisdiction would be an infringement on our states’ sovereignty. As if they had never thought of it before. Those more versed  in constitutional law will recognize, of course, that the fascination with sovereignty was paraded by various British governments for years as they resisted having to accept the European Court of Justice as an indispensable accompaniment to adherence to the European Community. But the British found that the other Europeans had no time for playing with political fictions in the modern world, and they soon found themselves buckling to the facts of daily life.  These same British must also now be saying to themselves that if Jamaica and Trinidad & Tobago have money to throw behind things that they have no use for, why come and worry us about loss of money through an Air Passenger Duty (APD) Tax?

Jamaica has long used the issue of sovereignty as a “no further forward” line in regional affairs. And while former Prime Minister Percival Patterson, before his departure from office, must have thought that he had just about brought the Jamaica Labour Party horse to drinking from the river on this point, it would appear that his successor, Prime Minister Bruce Golding, embroiled as he is with other matters, fell back on the old dictum and has resorted to Bustamante’s last defence of a referendum.  Yet, it will surely have struck Golding and his electorate that the recourse to sovereignty, as a defensive weapon against the Americans in the Dudus extradition affair, has been treated by the Americans like crumpled paper. So one cannot help feeling that his current return to the referendum argument is a temporary manouevre in the face of too many present difficulties. And if that is so, perhaps other member-states can well afford to be temporarily patient.

In Trinidad, former Prime Minister Panday, having fought hard to have the location of the headquarters of the CCJ, invoking at the time the support of some of the region’s most well-known diplomats in his lobbying, paid no heed to his commitments, nor obviously to the good names of those personalities, as he simply, year after year, ignored the requests to fully participate in the enterprise. And that is after he used the taxpayers’ monies to house the court in Port of Spain. To non-Trinidadians, it will surely have been seen as a full acceptance  by Panday’s government that oil and natural gas “cyar spoil, so what”?

His successor, Mrs Persad-Bissessar, a former Attorney General in one of Mr Panday’s administrations, has herself taken up his non-acceptance stance. She has ignored more recent  statements from high-level quarters in the United Kingdom that appeals to the Privy Council are taking up too much of their judges’ time. She insists (like Jamaica) that the time is not ripe for T&T’s practical participation in the CCJ beyond the arena of its jurisdiction in relation to Single Market matters. She pleads, in not so many words, that the Privy Council’s “distance” from our islands is likely to make the Court more objective than one located here”; another way, to the ears of the rest of us, of saying that our own jurists can be subject to inescapable pressures. But are the Dutch and British jurists now sitting on the court also likely to be subject to the pressures of proximity, and to be unable to persuade their Caribbean peers otherwise?  Mrs Persad-Bissessar must make up her mind and tell us.

There are some who will say, sotto voce but it needs to be said here, that there is a fear on the part of the Indian section of the population that the court could be biased against them. Yet, to our knowledge such a complaint has never seen the light of day to the extent that any court in Trinidad will have taken it seriously. And even if this were so, is the fact that there are persons of other (non-Trinidadian) nationalities on the CCJ, not likely to act as a sort of insulator against such pressures, to the benefit of those who might be fearful?

These governments really need to remind themselves of contemporary history. We felt that the British would find a way to maintain preferences for our sugar in the early 1960s, then Jamaican Trade Minister Robert Lightbourne even going as far as to demand “bankable assurances’ from Macmillan’s government.  But to no avail. We felt that they could find a way to protect us from the ways of the WTO, but that too has gone by the board, as our neighbour Brazil put the screws on sugar. And we thought that they would withdraw the APD, but we are left wondering whether the temporary palliative will long survive.

Are the British saying, “if they cannot believe in their own institutions, why should we spend time taking them seriously as we feel constrained to revise our own institutions (including, recently, the pyramid of the UK’s judicial system itself), and make promises to them that we might well feel constrained to break, even though they do it to themselves? Are such weak-willed governments worth fighting for?

“O would some Power the giftie give us / To see ourselves as others see us” (Burns).

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