June 27, 2009

Sir Ramphal on the CCJ

Source: Antigua Sun

Written by Sir Shridath Ramphal

FRIDAY, 26 JUNE 2009 20:18

Address by Sir Shridath Ramphal at the inauguration of the Caribbean Association of Judicial Officers, Port-of-Spain, 25 June, 2009.

It is almost axiomatic that the Caribbean Community should have its own final Court of Appeal in all matters. A century old tradition of erudition and excellence in the legal profession of the region leaves no room for hesitancy. Ending the jurisdiction of the Judicial Committee of the Privy Council was actually treated as consequential on Guyana becoming a Republic 39 years ago.

I am frankly ashamed when I see the small list of Commonwealth countries that still cling to that jurisdiction – a list dominated by the Caribbean. Now that we have created our Caribbean Court of Justice in a manner that has won the respect and admiration of the common law world, it is an act of abysmal contrariety that we have withheld so substantially its appellate jurisdiction in favour of that of the Privy Council – we who have sent Judges to the International Court of Justice, to the International Criminal Court and to the International Court for the former Yugoslavia, to the presidency of the United Nations Tribunal on the Law of the Sea; we from whose Caribbean shores have sprung in lineal descent the current attorneys-general of Britain and of the United States.

This paradox of heritage and hesitancy must be repudiated by action – action of the kind Belize has just taken to embrace the appellate jurisdiction of the CCJ and abolish appeals to the Privy Council.

It is enlightened action taken by way of constitutional amendment, and Belize deserves the applause of the Caribbean Community – not just its legal fraternity. Those countries still hesitant must find the will and the way to follow Belize – and perhaps it will be easier if they act as one. The truth is that the alternative to such action is too self-destructive to contemplate. If we remain casual and complacent about such anomalies much longer, we will end up making a virtue of them and lose all we have built.

To ensure against that – and to give confidence to our publics in so doing – governments must be as assiduous in demonstrating respect for all independent constitutional bodies, like the director of public prosecutions, for example, as the Caribbean Court of Justice itself must be in demonstrating its own independence. In the end, the independence of Caribbean judiciaries must rest on a broad culture of respect for the authority and independence of all Constitutional office holders so endowed.

And in the particular matter of the Caribbean Court of Justice we must act positively, not negatively. We must not abolish appeals to the Privy Council merely because we disagree with its rulings in capital punishment cases; that abolition, which must come, must be a consequence of our determination to endow our own Caribbean Court of Justice with the status of our final Court of Appeal in all matters; a consequence of the exercise of our right to self-determination in judicial matters too. We have not established the Caribbean Court of Justice to give decisions to our liking; but to give decisions under law.

Finally, we would confirm the myopia of which lawyers are often accused if we did not recognise that our Community faces dangers on other fronts – dangers which are apposite to all Caribbean judiciaries The basic premise of our regional lives is that West Indians are one people; and like all comingled people are of many varieties. In our case, the varieties have enriched the composite oneness, yielding now a characteristic mosaic identity of which we all tend to be proud and often boast.

Personally, I have been a West Indian from the first moment of awareness of such things; and wherever I have lived in the region – from Guyana to Trinidad, to Jamaica, to Barbados – I have been in my West Indian home.

I am not unique in this; it is true for most ordinary West Indians; the more "ordinary", the more true. It is always a sadness when, however propelled, our societies are caught in a downward spiral of separateness with fellow West Indians cast as ‘outsiders’; those times when, as Annalee Davis (the Barbadian Researcher) has described them, we become "locked into nationalist crevices … and exclusivist cultural legitimacy".

We are at such a time, and both policies and practices are deepening Caribbean divides. "The knock on the door at night" is not within our regional culture; still less are intimations of "ethnic cleansing".

No Caribbean leader would countenance such departures from our norms and values; but all must not only believe, but also act as if they believe, that we forget our oneness at our peril; whether the "otherness" that displaces it is an accidental place of regional birth, or otherness of any kind. I say ‘accidental’ because in the Caribbean the age-old process of trans-migration has made us all family: as a great Barbadian regionalist, the Rt. Excellent Errol Barrow, reminded us 23 years ago – concluding in his practical common-sense way that:

"If we have sometimes failed to comprehend the essence of the regional integration movement, the truth is that thousands of ordinary Caribbean people do in fact live that reality every day. … we are a family … and this fact of regional togetherness is lived every day by ordinary West Indian men and women in their comings and goings."

So indeed it was; and for a very long time. My great-great grandfather on my mother’s side came to Guyana from Barbados looking for land and settlement, and found them – and so it has been up and down the chain of island societies that free movement fused into one: freedom curbed ironically with the arrival of our separate ‘national’ freedoms. But the roots of those family trees are now spread out in the sub-soil of the Caribbean. Social antipathy and divisiveness deny them; but DNA’s defy even Constitutions.

"Caricom is at risk", we have been warned. So it is; and few are blameless. Political leaders, in particular, have to be less casual about Caricom, less minimalist in their ambition for it, less negative in their vision of it. Its foundations have been built on our oneness; not on the geography of a dividing sea.

The Revised Treaty of Chaguaramas is not just embellished parchment; it is the logic of that oneness in a world which threatens our separate survival. And the revised treaty is not all; there are international Conventions to which all Caricom member states are parties that are relevant to our rights and obligations to each other as human beings, much less family.

The Caribbean Community is now our regional mansion within a global home. We have to make it more secure and habitable – through reaching goals like the CSME (or even the CSM) and reaching them together.

Next month is the 20th anniversary of the Grand Anse Resolution on Preparing the peoples of the West Indies for the Twenty-first Century – the Resolution that established the West Indian Commission. Nearing the end of the new century’s first decade, we are still ‘preparing’. No wonder "Caricom is at risk". In the era of globalisation, we retrogress if we simply mark time while the world moves ahead.

As Caricom’s political directorate meet in Georgetown next week at their 30th Summit, they must demonstrate credibly that they still believe in Caribbean integration, that they care about securing it against risk and that they are serious in their commitment to the objectives of the Treaty of Chaguaramas. I believe the people the Caribbean yearn for that assurance from inspired leadership.

And so must we all here; for without Caricom, without the Community, where is the Caribbean Court of Justice; where, even, are Caribbean judiciaries?

The siren song of separatism lures us to self-destruction – as it once did with the federal nation we were about to be 47 years ago. The Federation – "The West Indies" – (how quickly we have forgotten its name) did not founder on technical rocks; it foundered on political ones. We have now re-built pains-takingly over nearly half a century; and are again "about to be" – this time an economic community. And again the siren sings seductive songs of separatism. In our collective self-interest, resistance of that enticement has become a major challenge of our time; and it is from our political directorates that the will to resist must mainly come.

The Caribbean Court of Justice, with the full jurisdiction with which it must soon be endowed, with its rich inheritance of the common law and of that international law which is the under-pinning of globalisation, is for me the greatest assurance that as a Community of Caribbean people, we can meet and overcome the challenges of the time.

No comments: