COMMENTARY: The CCJ ARGUMENTS ARE IN: I rest my case

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Chairman of the Antigua and Barbuda Reparations Support Commission (ABRSC) Dorbrene Omarde

By Dorbrene E. O’Marde

As I write this article about our required departure from the colonial instrument – the Privy Council, the news is being splashed around the world that the University of the West Indies is now rated among the top five percent of universities in the world. It is only seventy years old. In the mid 1940s, the idea of such a university was scorned by many who had no belief in the intellectual ability, organizational capability, foresight and integrity of Caribbean people – of their own people.

We were made to believe that Antiguans were not psychologically ready for independence in the mid-1970s. We were not ready for the Caribbean Examinations Council. We marched against the Education Levy and thought the Medical Benefits Scheme – now acknowledged as a regional national health insurance best practice – was a taxation rip-off. Today if we believe those descendants of that mindset, we are not ready for the Caribbean Court of Justice (CCJ), an organization we helped form and finance and of which we have been a member in its original jurisdiction for thirteen years.

The arguments are in. I doubt that those of us who have been following the discussion will hear new facts, new interpretations that will add to our understanding and ultimately affect our referendum decision. But for those undecided, I regurgitate my own understanding of where we are.
The Antigua and Barbuda Government as represented by the Antigua and Barbuda Labour Party has decided that accession to the CCJ is the way forward in aligning our judicial system with the increased confidence of our people after thirty eight years of independence. Our Parliament agrees.

Very few persons who have given the matter any serious thought object to the CCJ serving as our apex court. I quote Ms Quinn Williams, the toastmaster member of the ‘Movement’: ‘I am not fundamentally opposed to the CCJ. I believe that we should in due course accede to the CCJ as our final appellate court. I believe it is the right and natural thing to do, because like you – I am a proud Black woman who believes it is another step in ridding ourselves of the vestiges of colonialism, another step to true independence. I like that it [the CCJ] is independently funded, the lower cost. I agree to a great extent with the arguments put forward by the proponents…’

This strong affirmative sense of racial pride and regionalism is followed by a ‘but’ and a series of reasons why such sense of self should be shelved. Some of the facts/buts are undeniable – there are problems with physical accommodation, manpower, equipment etc in the lower courts that lead to delays in magisterial or judicial decision making; there is corruption among lawyers (like everywhere else in the world); there are attempts by politicians to influence the decisions of the lower courts (like everywhere else in the world); judges know potential litigants – they either share a social circle or university experience etc (like everywhere else in the world) etc.

But those persons who clamour for the ‘buts’ cannot at the same time suggest that ‘we should in due course accede to the CCJ as our final appellate court’ for their ‘buts’ will always be present – into perpetuity. There will always be corrupt lawyers; future judges on the CCJ will always have gone to school or were friends with potential litigants; there will always be unscrupulous politicians; the challenges of fixing our lower courts are not unlike the fixing our schools, our performance spaces, our roadways, our office complexes. They are on-going – ‘processes’ in many instances as opposed to ‘projects’. In a real thinking world, ‘not now, later’ is really ‘not now, never’ unless we find a way of altering humankind.

I am prepared to stand my ground and argue this issue from an anti-colonialist, regionalist position regardless of who or what group finds discussions about colonialism distasteful. It is a sad day in our history, in our search for understanding and remedy of the damage inflicted on our peoples and countries by slavery and colonialism to be burdened by the words of the Chairman of the Provincial Elders Conference of the Moravian Church who is quoted as saying ‘This whole discussion about slavery and colonialism, that might be good for some people, it is not good for me.’

Are we honestly being asked to ignore the fact that the Judicial Council of the Privy Council was established in 1833, the same year as the Abolition of Slavery Act as a colonial instrument for the perpetuation of neo-slavery colonial rule through judicial dominance and that it has engaged in such practices for nearly two hundred years? The London Financial Times has described the Privy Council as a ‘creature of Britain’s nineteenth century colonial pomp…widely seen as a post-imperial anachronism.’ Must we refrain from such observations? Lord Browne of the Privy Council has signalled to the Monarchy that ‘it is time to bring down the curtains on the British legal Empire’.

Must we ignore such historical fact in our analysis?

Must we ignore the fact that after presiding over a world on which the sun never set, the Privy Council now only serves a handful of independent nations – only in the Caribbean? Other former colonies have all left its jurisdiction on attaining independence. Must we ignore the hints or insults hurled at us by officers of that Council suggesting that British resources should be used to settle matters about which the British public cares? One has correctly suggested that ‘Caribbean countries should utilize the CCJ and that former Commonwealth countries would stop using the Privy Council.

I will not yield to the reverse psychology of those who pronounce their intentions to vote ‘double-no’ if their arguments are described as backward and illogical, as colonial, as outdated mush and deliberate attempts to sabotage a forward movement towards Independence. I write, unperturbed by them whether they wear African attire or are cloaked in gowns or in jacket and nooses (some people call them ties). They can vote ‘no’ if they like. They can remain on the wrong side of history – that’s their choice. What I say will not change their minds. But they must be exposed for intentionally confusing the issue and the minds of many citizens with non-sequiturs, with challenges to straight thinking, and with tangential arguments that emotionally appealing as they may sound – bear no relevance to the discussion ‘CCJ vs. Privy Council’.

PART 2
The leadership of the United Progressive Party must be severely condemned for pointing its supporters away from the CCJ on the basis that the memorandum of agreement it signed with the leadership of the ALP called for the staging of a multi-issue referendum – one of the issues being the CCJ, and that the ALP acted in bad faith by staging a single-issue referendum. The curious position of the supposedly responsible leadership of the UPP says that it is totally supportive of the CCJ but that support is only available through a multi-issue referendum aimed at constitutional reform. I do not lie. The same UPP sat on a Constitution Review report for ten years.

Then there is the ‘NOT YET MOVEMENT’ of 2016 that died so severely that one of its leaders either in ignorance (quite possible) or in pure rejection of his former position appeared on our 2017 calypso airways in the persona of the Privy Council shouting at Caribbean governments and people to ‘leggo me coat/court tail.’ Many thought that was the end of that charade, only to be assailed once more by a new group called ‘The CCJ CAN WAIT’, mouthing the same wet-you-hand-and-wait mantra as those who opposed the UWI, and independence and CXC and Social Security and Medical Benefits and the Education Levy. It is never the time for advancement, in their eyes.

Then there is the good governance group called the ‘Movement’, which I believe has genuine interests in fixes of/for the lower courts system. No one can deny that some of its members can justifiably attest to arduous relationships with the decision making of the legal system. But I challenge members of the Movement to indicate how and why the accession to the CCJ deters or bars or dissuades their recommended fixes to the lower courts. In our socio-economic reality, what aspects of our living does full 3

CCJ membership displace or erode? What do we do now that we must abandon or change to access it? What budgetary allocation must we cut or create? My Movement friends tend not to answer these questions creditably – if they do answer at all. Responses generally start with the shallow but offensive ‘trust is a must – we do not trust the CCJ’. Really? Why? It has a thirteen year old history and relations with four countries. What is the basis for the distrust?

There is no doubt that our road system is in a veritable mess. The highways and the feeder roads along which most of our residents live or use to get to their homes or farms are in a horrible shape. The UK Government in its attempt to dodge the inevitability of reparations rushes to the region and offers us whatever…twenty million pounds I think, to fix the highways. The logic of the Movement’s [and others] position suggests that we should not accept the grant to fix the highways unless the feeder roads were fixed – all of them – those in Bethesda, along with those in Yorks, along with those in…

The logic suggests that a hungry man should not accept a loaf of bread because he is waiting for a full breakfast. It rejects internationally accepted project management/strategic planning sense that we pick the lowest hanging fruit first and in this case, the lowest hanging fruit is the CCJ. We need no long fork-sticks, no ladders, no climbers, no bucket trucks to pick this fruit. There are no financial implications – we have already paid our dues and the Court seems sufficiently funded for the next two decades. There are no human resources implications and I maintain no integrity issues. The Court is in existence for thirteen years and not a single credible objection has been made about its integrity.

Let us ignore those who in wisdom beyond belief, suggest that we need to address food security first before simply signing a document to become a full member of a Court we helped create. Why not APUA, why not traffic jams?

These are the types of obfuscations to which I refer and detest.

The CCJ has received praise from member(s) of the Privy Council for the soundness of its decisions. We must understand that the CCJ’s decisions not only contribute to the development of a Caribbean jurisprudence but become part of the body of international/Commonwealth law. The decisions potentially become precedent for decisions made by judges in all those countries that have fled the Privy Council and established their own courts.
Our CCJ judges are fully aware of the responsibility they hold for representing us in the international community.

They have demonstrated the highest levels of excellence in their field, commitment to fairness and justice – we know of no Kavanaughs. The President/CCJ is a man of whom we should be proud – not sneered at and disrespected by many whose commitment to social justice is as new and fleeting as the rains.

This article will not change the minds of those coloured by opposition politics or those who have neither faith or trust in Caribbean [Black] people. I appeal however to those who may legitimately have grievance with the pace at which the Courts sometimes move, those who may have issues with the crooked lawyer or the unprincipled politician to see the CCJ as part of the solution, as a court that exists to put right the attempts to perpetuate injustice.

The CCJ is presently the implementing agency of a five year ‘Judicial Reform and Institutional Strengthening Project’ that addresses inter alia – capacity building, the establishment of specialized courts/divisions, delay and backlog elimination mechanisms, improvements in information and communication technology and the establishment of regional court performance standards. Those who lament about fixing the lower courts should be supportive of the CCJ’s work.

It has scolded the Barbados Government about delays in trials in Barbados; it has urged the Guyana Government to fill long vacant positions of Chancellor and Chief Justice. Unlike the Privy Council, the CCJ has shown keen interest in the repair of the judicial system at all levels.

9 COMMENTS

  1. Here in Antigua we are a fine example of a former colony, yet still part of the Commonwealth, that is thriving on our own with little outside influence or control. We must however be careful not to fall to the fate of other former colonies who have failed as independent nations: Uganda, Sierra Leone, Zimbabwe, Jamaica and of course Haiti come to mind right away. We have a beautiful country with smart hard working people. We must simply proceed with caution and with a well founded plan.

  2. Like so many others, Omarde advocates that decolonization begins and ends with the ascendy of a black, professional elite to positions once occupied by white men. He, like so many of today’s “anti-coloniasts, fails to realize that the problem that confronts the great majority of caribbean people is not the presence of any alien power. It is not the Brutish, the Chinese or the Amercans. Our problem is our political and professional elite who have used independece to facillItate and entrenched forms of dependecy in the Caribbean. //The professional elite in the Caribbean are interested in social mobility and in the economy they aim only to replace the foreigner as adviser or manager eager to demonstrate that they can represent foreing capital better than the capitalist themselves. //Meanwhile, the polical elite who make their pronouncements in a Parliament modelled on British representative democracy, have used their power to keep the masses subordinated to foreing capital and worse, they have done every legal thing to make ineffective the one organization -the trade union- the workers have to collectively challenge the foreign capital sanctioned and defended by the black, polical and professional elite. //Independence did not give rise to the reorganization of the caribbean or was focussed on elevating the workers and pessants to the commanding heights of the society. Everything was done to keep them out and only when the elite wanted them to endorse the elite’s social ascendancy were they called upon. //Those who are interested in understading the beyratal of the black elites in Africa and the Caribbean can read Frantz Fanon ‘wretched of the earth’ particularly the chapter entitled “the pitfalls of national unconsciousness.” //The Grenada 1979 revolution, before Bernard Coard initiated its demise, is a true example of how you proceed with decolonization. It is a complete break with all colonial instituons: ita form of democracy replaced with direct democracy, workers ownership, peasant cooperatives and popular assemblies and a constitution to make the revolutionary change legal and all embracing. //Anthing short of revolutionary change is not decolonization. Dorbrene never embraced power emanating from below and that is why he kept a distance from ACLM.

    • and nothing of what you said change the fact that all the arguments for the staying with the PC are now rebutted and in the interest of the so called poor people. The less fortunate financially that cannot ever afford to bring their case to the PC their only and best option is to turn to the CCJ, even if this was the only reason to so do. Leaving aside the notion of true independence and colonialism.

  3. Professor Richard Drayton, an advocate for the CCJ posed to his audience a number of questions which all the supporters of the CCJ in Antigua have not attempted to raise much less address. They are more concerned with ancillary issues, like cost and qualification of the judges, etc. etc. Drayton goes beyond that.
    In the 2016 speech to his Trinidadian audience comprised mostly of lawyers and intellectuals, Drayton asked the following: “…to what extent should Caribbean judges guide the interpretation of statutes towards the needs of present and future justice? How far, more generally, should the judge view her or himself as a maker of history?…How can we preserve the authority of the law while turning consent into the centre of our jurisprudence?”

    Who has brought these questions to your attention? Why are they so important? First of all, the history of law in Antigua will show a type of jurisprudence not based, unambiguously, in notions of justice nor does it allows for new forms of democratic expressions and engagement. The Constitution of Antigua is more concerned with a functioning bureaucracy. There is no provision made for people to effectively influence policies enacted in its name. Enshrining consent is not central to the document beyond elections and I would be happy if you could point out to me where any attempt has been made in Antigua to broaden the scope for democratic engagement. Every thing points to the contrary. What proves this is when Benjamin reminded the Barbudans that he could use a 1956 colonial era law to extend the emergency in Barbuda thus preventing them from returning to Barbuda when they wanted to.

    This is the social environment your CCJ will have to operate in. It cannot make laws. They can only interpret them and if the law is not sufficiently elastic to allow new interpretations of rights and justice it remains restricted within the legal boundaries of the law. This has nothing to do with how bright they are. And no one doubts that.

    Another important consideration is that the justices may not share your notion of justice. They are like us. They are not untouched by the class conflicts in society and it would be a mistake to assume that their decisions are totally free of ideologically biases. Pay attention to the following quotation.

    Justice Holmes who was an Associate Justice of the Supreme Court until 1932. Here is opinion on the origin and influences of the law. “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” [The Value Of Justice.] I hope read it again and again and make it central to your discussion on the CCJ. Share it with your friends.

    What is the point of all of this? Can the CCJ do for us what governments have failed to do? I say no. They can tinker with the law but eventually it is you who will have to create new notions of jurisprudence and the law to enable the kind of justice that you aspire to. That is a political act. The CCJ cannot liberate you, even if they are so inclined. It is you who will have lay the foundations of new and liberated society in which the CCJ becomes a mere reflection of your liberation desires. Such was the original notion of the American revolution. Embodies in its Declaration of Independence, it declare that all men born with inalienable rights, that among them are life liberty and the pursuit of happiness. The Grenadian revolution of 1979 was an attempt at a new perspective and practice. Its debated Constitution was going to be the embodiment of those liberated ideas and practices. You and Antigua can find theirs and once an for all you can remove the obstacles in the way of a justice founded on new social and political relations. The only thing standing in your way is not “colonialism.” I am inclined to believe that you have lived your life under the rule of black governments. There is no alien force in Antigua holding back. You hindrance stands in front o you in black skin.

  4. The logic of the movement is that this is a irreversible choice much like Independence, not that we must get a full breakfast in lieu of a loaf of bread.
    The CCJ can wait. We must proceed with caution because unlike the roads, traffic jams or APUA we do not get a do over. These are false and downright dishonest analogies.
    We have no problem with black excellence it is the betrayal of our leaders that have let us down in all aspects of life that informs our vote.
    Vote NO to the CCJ.

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