“It may be in the Caribbean, 50 years after independence, that we must become our own founding fathers and mothers. Our task, one in which legislators, judges and citizens must share, is to create a constitutional identity which we can claim as our own ‘precious heritage’.” Richard Drayton
A week after the failed referenda in Grenada and Antigua and Barbuda on November 6, 2018, a former student asked why I had not yet written on their outcome. Well, I cannot comment on everything simultaneously, and there are others equally, and perhaps more capable of doing so. My silence on the issue however, was not because of disinterest nor was it motivated by the anticipated and final result of the referenda. Quite simply, it was a function of my preoccupation with how the Anglophone Caribbean can improve the quality of elections and by the number of other critical issues to which I had to give my attention.
The irony is not lost on me, of course. Referenda also challenge the capabilities of EMB’s (on which I have devoted the last four columns), just as it is a judgement on the political interest of citizens and the way in which partisan politics takes precedence to common sense, dignity and pride in national and regional institutions. But the message is quite clear in other ways. There is, undoubtedly, a distrust in the judicial system and its capacity to engage in independent decision making in the best interest of the citizenry. Does the judiciary always uphold the rule of law and does it do so with a degree of efficiency?
Justice Saunders on the topsy-turvy thinking on the legal system
One cannot say it any better than Justice Saunders, the current President of the Caribbean Court of Justice in relation to the functioning of the judicial system across the Caribbean. According to him, “I have heard some persons make the point that ‘well, the local justice systems are in trouble or that they not functioning efficiently, so where are we going with the CCJ?’ and this astounds me because this is putting things on its head. It is putting things in a topsy-turvy manner… It is precisely because you want to tweak those systems, you want to render them more efficient, you want to have your final court interacting and interfacing with the systems below that you need a court that is responsive and that is able to do these things… The Privy Council is too remote, is too detached in order to make that kind of intervention. So, when people say that ‘oh, there are these problems in the courts below and so we need to remain with the Privy Council,’ it is ridiculous because remaining in the Privy Council does nothing to address those problems of the courts below.”
On what are we actually voting?
Was the vote actually a vote against the operations of the Caribbean Court of Justice or was it a vote against government? Much has been said about the need for an independent judiciary and especially the need for a judiciary that would be independent of political pressure and therefore able to follow the law in all cases. There are some isolated cases across the Caribbean which have led to some questioning of the ability of the judiciary in some countries to impart independent and fair rulings which has led to allegations that there are political attempts to manipulate the courts. The referendum posed absolutely no threat to judicial independence. That much must be clear to all. If anything, it would in fact improve judicial independence. So then, what is the issue?
Referendum: Double-Edged Sword
I believe in the right of ordinary citizens to have a say in major decisions that will impact them in both the short and long run. That must be said upfront. And a referendum can fuel democracy especially with regard to the many ballot initiatives that we often see in the United States for example. However, referenda are dangerous too, especially because too often, as in the Brexit vote, voters operate on unreflective impulses. Dangerous therefore, because a negative vote can invariably forestall development, in the way that the results in Antigua and Barbuda and Grenada appear to have done.
Why do I say so? It is based on the very simple view that just because the citizens (and a minority at that) have spoken (yes, in a definite manner), does not automatically signal that the electorate have given the issue of the Caribbean Court of Justice and closing the circle of one of the critical aspects of our independence, the kind of due attention that it deserves. And the problem with these latest votes on this issue is that it will give those opposed to regionalising the final court, false legitimacy. And it is false legitimacy as less than half of the eligible voters cast their vote on referendum day.
It is also interesting to examine what shifts have occurred in the intervening two years in Grenada when the vote was organised on the CCJ. In that case, 43.27 per cent (9,639) of the 23, 177 voters casting their vote, supported the initiative compared to 12, 635 (56.73 per cent) who voted against the initiative. In Grenada, the increased mobilization of the government only resulted in a slight upward trend in terms of support for the CCJ, but this was rather inconsequential in a numbers way.
Inconsequential numerically however, ought not to blind the observer to what is most definitely a slow, almost imperceptible slide towards the CCJ. I may be misreading the results, but it is better than its opposite, which to me is beyond palatable.
Authenticity of the Process and Outcome
Of course there are many ways by which we can determine the authenticity of the voters’ choice, however disappointing. For one, we must note that in both Antigua and Barbuda and Grenada, the citizens were involved in the process of making the decision on the CCJ and were not merely being consulted on a matter which was already decided by policy makers (thanks primarily to the constitution). In this case, public participation was more than merely symbolic, it was substantive. It was not merely form, it was substance.
In Grenada, there was the 2016 attempt and in 2018, the Government announced that it would consult the people on the issue yet again. In early 2016, Prime Minister Gaston Browne of Antigua and Barbuda again stressed the need for a non-partisan approach towards the national referendum on whether or not Antigua and Barbuda should adopt the CCJ as the country’s final appellate court. The country also launched a public education programme organized by Head of the National Coordinating Committee Ambassador Dr Clarence Henry on March 10, 2016, which saw regional resource persons such as our own UWI (Cave Hill Campus) Jeff Cumberbatch (to the best of my recollection), engaging with the public on the issue. Besides, the issue of the removal of the Privy Council as the final court of appeal for the Commonwealth Caribbean has a long genesis in the region. The consultation, therefore, satisfies the need for timely input, and as such, the entire exercise was authentic.
Arguably, the most critical issue in the authenticity of the referendum was its representativeness; it gave every citizen qualified to vote and registered to vote, an equal opportunity to participate in the vote.
By far the most concerning issue relates to whether or not citizens were provided with adequate information on which they could frame their decision. Was there an overt effort to muddy the debate on the CCJ, was there deliberate misinformation?
Finally, of course, we can root our assessment of the authenticity of the exercise on the level of transparency of the process. And it is clear that the process was conducted in a transparent manner.
So, if the process lacks authenticity, the weak link in the chain is the issue of information which must be coupled with the public education exercise. Quite simply, supporters of the move to the CCJ have failed in their education programme. Perhaps too, it is the chosen messengers who are the wrong instrument to undertake the public education exercise in a context where we are highly partisan and, quite naturally, there is tremendous distrust in politicians, political operatives and those closely affiliated with the political elite. Furthermore, we must also consider the timeliness of the referenda undertaken in a climate of debt, unemployment, insecurity, crime and violence and more. Citizens may quite simply not see the relevance of and value of the referenda at this moment. And if they fail to see this, it is because the independence project has quite literally failed. For this is basic.
Despite this failing and the apparent resistance to delinking from the British Privy Council, we must try and try again for the continuation of the Privy Council in our jurisdictions is unthinkable. It is time to uncouple the Privy Council and Caribbean judicial systems.
(Cynthia Barrow Giles is a senior lecturer in political science at the University of the West Indies, Cave Hill Campus)